Section
2031. Purpose.
2032. Paternity Proceedings Generally.
2033. [Reserved].
2034. Establishing Paternity Through Court Order.
2035. Establishing Paternity by Acknowledgment.
2036. Paternity Established by Other Jurisdiction.
§ 2031. Purpose.
The purpose of this subchapter is to ensure that the father of every child subject to the jurisdiction of the Band is identified and paternity established in order to protect, promote, and help provide for the child’s best interests. This shall include—but not be limited to—the health, education, and support of the child; the child’s receipt of survivorship, inheritance, and Social Security benefits; and the transmission of the customs and traditions of the Band to the child.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2031.
Band Ordinance 01-21.
§ 2032. Paternity Proceedings Generally.
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(a) This subchapter provides for the establishment of paternity through court order and by acknowledgment. Establishment of paternity by court order is generally a contested process but may also be used if an alleged father is deceased or otherwise unavailable. Establishment of paternity by acknowledgment is an uncontested process allowing a father to swear under oath that he is the biological parent of a child.
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(b) An unwed father is not entitled to treatment as a parent under this Title unless his name appears on the child’s birth certificate or unless his paternity is established or acknowledged as provided in this subchapter.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2032.
§ 2033. [Reserved].
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2033.
§ 2034. Establishing Paternity Through Court Order.
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(a) Who may file. A child, a child’s legal guardian, a child’s biological mother, an alleged father of a child, or the Band Authority may file a petition requesting the Court to establish paternity. The biological mother and an alleged father may file jointly.
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(b) Petition.
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(1) A petition to establish paternity shall include the following:
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(i) The names, dates of birth, addresses, and tribal affiliations, if any, of the biological mother, the alleged father(s), the child, and all others who have legal rights of custody, visitation, or support of the child;
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(ii) A short statement alleging facts to establish a reasonable possibility of the requisite sexual contact between the biological mother and alleged father;
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(iii) The marital status of the biological mother and the alleged father(s);
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(iv) The consent, if any, of the biological mother and the alleged father to establish the alleged father as the biological father of the child;
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(v) Whether any party has filed an action to determine paternity in any other court or with any agency and, if so, whether a judgment or other determination of paternity has been rendered by any other court or agency;
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(vi) A copy of the child’s certified birth certificate attached as a supporting document; and
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(vii) The notarized signature of the petitioner verifying the truth of the information in the Petition.
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(2) In a case where domestic violence has been an issue, an address is not required for the aggrieved party.
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(c) Notice. All parties, including the biological mother and each man alleged to be the biological father, shall be notified of the petition and of all hearings, and shall be given an opportunity to be heard. The party required to provide notice shall do so in compliance with the notice requirements found in the Federal Rules of Civil Procedure.
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(d) Summons. The summons to be served on the alleged father(s) along with the Petition shall include the following notice, in addition to providing a time and date for appearance:
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NOTICE TO RESPONDENT:
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(1) You have been named in a petition alleging paternity. A judgment of paternity would legally designate the child as your child, grant parental rights to you, create the right of inheritance for the child, obligate you to pay child support until the child reaches the age of eighteen (18), or, if the child is disabled or is attending high school on a full-time basis and the Court so orders, until the child reaches the age of twenty-one (21), and make your failure to pay child support punishable by contempt of court.
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(2) You may request genetic tests which will indicate the probability that you are or are not the father of the child. The Court will order genetic tests on request by you, the Band Authority, or any other party. Any person who refuses to take court-ordered genetic tests may be punished for contempt of court.
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(3) The petitioner has the burden of proving by a preponderance of the evidence that you are the father. If a genetic test shows that you are not excluded as the father and that the statistical probability of your being the father is ninety-two percent (92%) or higher, you are presumed to be the father.
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(4) The following defenses are available to you:
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(i) That you were sterile or impotent at the time of conception;
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(ii) That you did not have sexual intercourse with the mother of the child during the conception period; or
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(iii) That another man did have intercourse with the mother of the child during the conception period.
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(5) If you fail to appear at any state of the proceedings, including a scheduled genetic test, the Court may enter a default judgment finding you to be the father. A default judgment will take effect twenty-eight (28) days after it is served on or mailed to you, unless within those twenty-eight (28) days you present yourself to the Court and establish good cause for your failure to appear and present yourself for the genetic test. The Court’s entry of a default judgment does not make a child eligible for enrollment in the Mille Lacs Band of Ojibwe.
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(e) Hearing. The following rules apply to paternity hearings:
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(1) The mother of the child and the alleged father(s) may be compelled to testify at the hearing.
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(2) Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
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(3) The hearing shall be conducted by the judge with no jury.
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(4) Paternity hearings will be closed to outside observers. Only the parties directly involved, necessary witnesses, and Court personnel shall be present at hearings. The Court may utilize its discretion to permit other observers, provided that the Court has offered all parties the opportunity to object.
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(f) Genetic Tests.
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(1) If the alleged father(s) is alive and available, the Court may require the child, mother, and alleged father(s) to submit to genetic tests, unless the Court determines it would not be in the best interest of the child in accordance with § 2034(i) of this Title.
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(2) An alleged father may be excused from the requirement to submit to a genetic test if the Court determines that there is no reasonable possibility that sexual contact occurred at or near the time of conception.
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(3) If genetic testing is required by the Court, such testing shall be performed by an expert in paternity genetic testing approved by the Court.
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(i) If such test confirms parentage, the disputing parent shall pay the cost of testing. If the test disproves parentage, the petitioner shall pay the cost of testing.
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(ii) The Band Authority shall not be required to pay for any genetic testing ordered by the Court in a non-child support matter.
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(4) The Court may order additional genetic tests by other experts qualified in paternity genetic testing upon reasonable request of a party, at that party’s expense.
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(g) Evidence. The Court may consider the following types of evidence in paternity cases:
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(1) Genetic test results, including the impossibility or the statistical probability of an alleged father’s paternity, presented by either expert testimony or a written report accompanied by an affidavit. The following types of genetic tests are admissible as evidence of paternity provided that the results of all tests, when taken together, either exclude an alleged father or yield a statistical probability of at least ninety-two percent (92%) that the alleged father is the biological father: DNA, HLA (Human Leukocyte Antigens), red blood cell enzyme, red blood antigen, and serum protein tests;
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(2) Evidence of sexual intercourse between the mother and the alleged father(s) at any possible time of conception;
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(3) An expert’s opinion concerning the statistical probability of an alleged father’s paternity, based upon the duration of the mother’s pregnancy;
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(4) Medical or anthropological evidence relating to an alleged father’s paternity of the child based on tests which may be ordered by the Court and performed by experts;
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(5) Cultural evidence, a reputation in the community as to paternity, or both; or
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(6) Any other reliable evidence which is relevant to the issue of paternity of the child.
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(h) Presumption of Paternity. A man is presumed to be the biological father of a child if he and the biological mother were married at the time of the child’s birth or if the child was born within three hundred (300) days after the marriage was terminated. The presumption can only be overcome by genetic testing proving another man is the father by a statistical probability of ninety-two percent (92%).
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(i) Best Interest of the Child Not to Establish Paternity. The Court may determine that it is not in the best interest of the child to establish paternity if:
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(1) The child was conceived as a result of rape, incest, sexual abuse of a minor, or sexual assault;
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(2) A legal proceeding for adoption is pending before a court of competent jurisdiction; or
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(3) The cooperation of the child’s custodian in the establishment of paternity is reasonably likely to result in physical or emotional harm to the child or to the child’s custodian.
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(j) Judgment of Paternity After Failure to Appear. If the respondent is the alleged father and fails to appear for a Court proceeding or for a genetic or other test at any time not waived by the Court, the Court may, if no good cause to the contrary exists, enter an order that the respondent is the father, which shall be served on respondent personally, or by registered or certified mail to his last known address, or by publication if the respondent’s address is not known.
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(1) Such order shall take effect twenty-eight (28) days after service unless, within that time, the respondent presents to the Court evidence of good cause for his failure to appear at the proceeding or to undergo the genetic or other test.
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(2) No default order shall be entered by the Court unless the respondent was properly served with notice of the proceeding or test at which he failed to appear in accordance with § 2034(c) and (d) and the Federal Rules of Civil Procedure.
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(k) Judgment of Paternity. The judgment or order of the Court determining the existence or nonexistence of paternity shall be based on a preponderance of the evidence and shall be final subject only to an appeal to the Band’s Court of Appeals.
- (1) If the judgment or order of the Court is different from the child’s birth certificate, the Band Authority shall send the order to the Department of Vital Statistics of the state in which the child was born. The Court shall order the child’s parents to reimburse the Band Authority for any associated expenses.
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(l) Reopening Default Judgment of Paternity. A default judgment declaring a person to be the father of a child may be reopened upon petition for good cause shown within ninety-one (91) calendar days of the default judgment.
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(m) Time for Filing Paternity Action. A petition to determine paternity may be filed at any time for the purpose of establishing the existence of a father and child relationship. If a petition to determine paternity is brought before the birth of the child, no hearing or other proceeding shall be conducted until after the birth unless the court shall determine that an action is necessary in order to preserve testimony.
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(n) Hearing Closed, Records Sealed. Paternity proceedings shall be closed and all records shall be sealed except as ordered by the Court for the purpose of requesting an amended birth certificate, or for any purpose consistent with the best interest of the child.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2034.
Band Ordinance 01-21.
§ 2035. Establishing Paternity by Acknowledgment.
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(a) Request for recognition. The mother and alleged father of a child born to a mother who was not married to the child’s alleged father nor to any other man when the child was conceived nor when the child was born may, in a writing signed by both of them before a notary public and filed with the Court, state and acknowledge under oath that they are the biological parents of the child and wish to be recognized as the biological parents.
- (1) The recognition must be on the form prepared by the Band Authority under § 2035(f), except that it may also include the joinder in recognition provisions under § 2035(b). The requirement that the mother not be married when the child was conceived nor when the child was born does not apply if her husband or former husband joins in the recognition under § 2035(b).
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(b) Joinder in recognition by husband. A man who is a presumed father under § 2034(h) of this Title may join in a recognition of parentage that recognizes that another man is the child’s biological father.
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(1) The man who is the presumed father under § 2034(h) must sign an acknowledgment under oath before a notary public that he is renouncing the presumption under § 2034(h) and recognizing that the father who is executing the recognition under this section is the biological father of the child.
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(2) A joinder in a recognition under this paragraph must be executed within one year after the child’s birth and the joinder must be filed with the Court.
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(i) The joinder must be on a form prepared by the Band Authority.
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(ii) Failure to properly execute a joinder in a recognition does not affect the validity of the recognition under this section.
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(iii) A joinder without a corresponding recognition of parentage has no legal effect.
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(c) Revocation of recognition. A recognition may be revoked in a writing signed by the mother or father before a notary public and filed with the Court within sixty (60) calendar days after the recognition is executed or the date of a hearing in an action relating to the child in which the revoking party is a party.
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(1) A joinder in a recognition may be revoked in a writing signed by the person who executed the joinder and filed with the Court within sixty (60) calendar days after the joinder is executed.
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(2) Upon receipt of a timely revocation of the recognition of parentage or joinder in a recognition, the Court shall forward a copy of the revocation to the non-revoking parent, or, in the case of a joinder in a recognition, to the mother and father who executed the recognition, and the recognition shall have no further force or effect.
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(d) Effect of recognition. Once a recognition has been properly executed and filed with the Court in accordance with § 2035(a), if there are no competing presumptions of paternity under § 2034(h) of this Title or if any such presumption has been renounced under § 2035(b), and if neither the recognition nor the joinder in recognition, if any, has been revoked under § 2035(c) and no other recognition has been filed for the same child, the recognition:
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(1) has the force and effect of a judgment or order determining the existence of the parent-child relationship, is determinative for all purposes related to the existence of the parent and child relationship, and is entitled to full faith and credit in other jurisdictions;
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(2) precludes any further action to determine parentage regarding the signatory of the recognition, except as provided in § 2035(e); and
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(3) is a basis for bringing an action:
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(i) to award legal and physical custody or parenting time to either parent, provided that, until an order is entered granting custody to another, the mother shall have sole custody of the child;
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(ii) to establish a child support obligation, which may be retroactive for up to two years immediately preceding the commencement of the action;
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(iii) to obtain an order for contribution to the reasonable expenses of the mother’s pregnancy and confinement; and/or
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(iv) to obtain an order for reimbursement of the costs of blood or genetic testing.
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(e) Action to vacate recognition.
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(1) An action to vacate a recognition of paternity may be brought by the mother, father, husband or former husband who executed a joinder, the child who was the subject of the recognition, or the Band Authority.
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(i) A mother, father, or husband or former husband who executed a joinder must bring the action within one year of the execution of the recognition or within six months after the person bringing the action obtains the results of blood or genetic tests that indicate that the person who executed the recognition is not the father of the child.
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(ii) A child must bring an action to vacate within six months after the child obtains the results of blood or genetic tests that indicate that the person who executed the recognition is not the father of the child, or within one year of reaching the age of majority, whichever is later.
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(iii) If the Court finds a prima facie basis for vacating the recognition, the Court shall order the child, mother, father, and husband or former husband who executed a joinder to submit to blood or genetic tests.
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(A) If the Court issues an order for the taking of blood or genetic tests, the Court shall require the party seeking to vacate the recognition to make advance payment for the costs of the blood or genetic tests.
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(B) If the party fails to pay for the costs of the blood or genetic tests, the Court shall dismiss the action to vacate with prejudice.
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(C) The Court may also order the party seeking to vacate the recognition to pay the other party’s reasonable attorney’s fees, costs, and disbursements.
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(D) If the results of the blood or genetic tests establish that the person who executed the recognition is not the father, the court shall vacate the recognition.
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(E) If a recognition is vacated, any joinder in the recognition under § 2035(b) is also vacated.
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(F) The Court shall terminate the obligation of a party to pay ongoing child support based on the recognition.
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(G) A modification of child support based on a recognition may be made retroactive with respect to any period during which the moving party has pending a motion to vacate the recognition but only from the date of service of notice of the motion on the responding party.
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(2) The burden of proof in an action to vacate the recognition is on the moving party. Such request must be on the basis of fraud, duress, or material mistake of fact.
- (i) The legal responsibilities in existence at the time of an action to vacate, including child support obligations, may not be suspended during the proceeding, except for good cause shown.
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(f) Recognition form. The Band Authority shall prepare a form for the recognition of parentage under this section. In preparing the form, the Band Authority shall consult with the individuals specified in § 2035(g). The recognition form must be drafted so that the force and effect of the recognition, the alternatives to executing a recognition, and the benefits and responsibilities of establishing paternity are clear and understandable. The form must include a notice regarding the finality of a recognition, the revocation procedure under § 2035 (c), and the procedure for vacating the recognition under § 2035 (e). The form must include a provision for each parent to verify that the parent has read or viewed the educational materials prepared by the Band Authority describing the recognition of paternity. The individual providing the form to the parents for execution shall provide oral notice of the rights, responsibilities, and alternatives to executing the recognition. Notice may be provided by audiotape, videotape, or similar means. Each parent must receive a copy of the recognition.
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(g) Paternity educational materials. The Band Authority shall prepare educational materials for new and prospective parents that describe the benefits and effects of establishing paternity. The materials must include a description and comparison of the procedures for establishment of paternity through a recognition of parentage under this section and an adjudication of paternity under § 2034 of this Title. The Band Authority shall consider the use of innovative audio or visual approaches to the presentation of the materials to facilitate understanding and presentation. In preparing the materials, the Band Authority shall consult with child advocates and support workers, battered women’s advocates and advocates for domestic abuse victims, social service providers, educators, attorneys, hospital representatives, and people who work with parents in making decisions related to paternity. The Band Authority will make the materials available without cost to hospitals, requesting agencies, and other persons for distribution to new parents.
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(h) Hospital distribution of educational materials; recognition form. Hospitals that provide obstetric services and the Band Authority shall distribute the educational materials and recognition of parentage forms prepared by the Band Authority to new parents and shall assist parents in understanding the recognition of parentage form in accordance with § 2035 (f).
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(i) More than one recognition. If the Court receives more than one recognition of parentage for the same child, the Court shall notify the signatory on each recognition that the recognition is no longer effective and that each man has only a presumption of paternity.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2035.
Band Ordinance 01-21.
§ 2036. Paternity Established by Other Jurisdiction.
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(a) The Court shall give full faith and credit to properly issued court and administrative orders, judgments, or decrees of other Indian tribes, states, or federal agencies establishing paternity.
- (1) Such orders will be considered properly issued when the issuing court or administrative agency had personal jurisdiction over the person claimed to be bound by the order and subject-matter jurisdiction over the matter, proper service of process under the law of the issuing jurisdiction was made on such person, and the order was issued pursuant to the laws of that jurisdiction and does not violate the laws of the Band.
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(b) An order described in § 2036(a) must be authenticated by reasonable proof that the document tendered to the Clerk of the Court is a true copy of the order as it is recorded in the agency or court of the issuing jurisdiction.
- (1) An authentication stamp issued by a clerk of court or custodian of records, or a court seal, is sufficient evidence of authenticity.
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(c) Unless defects in jurisdiction are apparent on the face of an order described in § 2036(a), the person contesting enforcement of the order has the burden of showing the order is not valid. Upon a failure to respond to a notice of the order and to timely contest it, the Court shall enforce it as a Band Court Order.
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(d) Where an order described in § 2036(a) is invalid by reason of a lack of personal jurisdiction in the agency or court of the issuing jurisdiction, the Court may adopt some or all of its provisions as an original order of the Court to the extent that it does not violate the laws of the Band.
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(e) An order described in § 2036(a) does not automatically establish paternity for Band enrollment purposes.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2036.