TITLE 36 DOMESTIC RELATIONS
CHAPTER 2 PATERNITY
PART 3 PATERNITY AND LEGITIMATION
24-7-112: Tests to determine parentage – Admissability
Statement of purpose.
This chapter provides a single cause of action to establish parentage of children other than establishment by adoption pursuant to chapter 1 of this title, or by acknowledgement of parentage pursuant to § 68-3-203(g), § 68-3-302 or § 68-3-305(b).
Title 36, Ch. 2, Part 3, §36-2-301. (1997)
As used in this chapter, unless the context otherwise requires:
(1) “Child born out of wedlock” means a child born to parents who are not married to each other when the child was born;
(2) “Court” means the juvenile court or any trial court with general jurisdiction;
(3) “Father” means the biological father of a child born out of wedlock;
(4) “Mother” means the biological mother of a child born out of wedlock; and
(5) “Parent” means the biological mother or biological father of a child, regardless of the marital status of the mother and father.
“Father,” “mother,” and “parent” do not include a biological parent whose parental rights have been terminated for a child whose parentage is at issue.
Title 36, Ch. 2, Part 3, §36-2-302. (1997)
Custody absent an order of custody.
Absent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.
Title 36, Ch. 2, Part 3, §36-2-303. (1997)
Presumption of parentage.
(a) A man is rebuttably presumed to be the father of a child if:
(1) The man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
(2) Before the child’s birth, the man and the mother have attempted to marry each other in compliance with the law, although the attempted marriage is or could be declared illegal, void and voidable;
(3) After the child’s birth, the man and the mother have married or attempted to marry each other in compliance with the law although such marriage is or could be declared illegal, void, or voidable; and:
(A) The man has acknowledged his paternity of the child in a writing filed under the putative father registry established by the department of children services, pursuant to § 36-2-318; or
(B) The man has consented in writing to be named the child’s father on the birth certificate; or
(C) The man is obligated to support the child under a written voluntary promise or by court order;
(4) While the child is under the age of majority, the man receives the child into the man’s home and openly holds the child out as the man’s natural child; or
(5) Genetic tests have been administered as provided in § 24-7-112, an exclusion has not occurred, and the test results show a statistical probability of parentage of ninety-five percent (95%) or greater.
(b)(1) Except as provided in subdivision (b)(2), a presumption under subsection (a) may be rebutted in an appropriate action.
(A) If the mother was legally married and living with her husband at the time of conception and has remained together with that husband through the date a petition to establish parentage is filed and both the mother and the mother’s husband file a sworn answer stating that the husband is the father of the child, any action seeking to establish parentage must be brought within twelve (12) months of the birth of the child. In the event that an action is dismissed based upon the filing of such a sworn answer, the husband and wife who filed such sworn answer shall be estopped to deny paternity in any future action.
(B) A petition to establish parentage may be brought under this part if a dismissal of a petition under the prior legitimization statutes was based upon the mother’s marriage to another man at the time of conception or upon the petitioner’s lack of standing. In such cases, the requirements of subdivision (b)(2)(A) requiring a petition to be filed within twelve (12) months of the birth of the child shall not apply. It is the intent of the general assembly that putative fathers who filed a cause of action under this chapter prior to the July 1, 1997, effective date of Acts 1997, ch. 477, and whose action was so dismissed, shall have an opportunity to prosecute a single cause of action under this part. Thus, the doctrines of res judicata and collateral estoppel shall not bar such new or pending action, nor shall any statute of limitation which may have run bar such new or pending action. It is the clear and unequivocal intent of the general assembly that this provision shall be applied retroactively to such petitions to establish parentage. No such retroactive application shall, however, abrogate the provisions of § 36-1-122.
(3) The standard of proof in an action to rebut paternity shall be by preponderance of the evidence.
(4) In any case, except terminations of parental rights or adoptions under title 36 or title 37, in which the paternity of a child is at issue and an agreed order or divorce decree has been entered finding that an individual is not the parent of the child, the finding shall not be entitled to preclusive effect unless the finding was based upon scientific tests to determine parentage which excluded the individual from parentage of the child in question.
(c) All prior presumptions of parentage established by the previous paternity and legitimation statutes and cases are abolished.
Title 36, Ch. 2, Part 3, §36-2-304. (2000)
Agreement to establish parentage – Complaint to establish parentage – Parties – When action may be brought – Order of protection.
(a) The court may enter an order of parentage upon the agreement of the mother and father unless the court on its own motion orders genetic testing. In any such agreement, the mother and father must affirmatively acknowledge their parentage of the child. Any agreement under this part shall comply with the requirements of § 36-2-311.
(b) Absent an agreement or an acknowledgement of parentage as prescribed by § 68-3-203(g), § 68-3-302, or § 68-3-305(b), a complaint to establish parentage may be filed. Except as hereinafter provided, Tennessee Rules of Civil Procedure shall govern all actions under this subsection.
(1) A complaint to establish parentage of a child may be filed by:
(A) The child, if the child has reached the age of majority, or if the child is a minor, the child through a guardian or next friend;
(B) The child’s mother, or if the mother is a minor, the mother’s personal representative, parent, or guardian;
(C) A man claiming to be the child’s father, or if the man is a minor, the man’s parent, guardian, or personal representative;
(D) The department of human services or its contractor.
(2) One (1) man or several men may be named as the father. The naming of one (1) man as father does not preclude a later suit against another man if the court finds that the first man is not the father of the child.
(3) If an action under this section is brought before the birth of the child, all proceedings may be stayed until after the birth, except service of process, the taking of depositions to preserve testimony, and the performance of genetic testing.
(4) If the alleged father threatens or attempts to harm the complainant in any manner, the court may enter an order of protection pursuant to chapter 3, part 6 of this title. Nothing in this subsection shall be construed to alter or increase the jurisdiction of the juvenile courts to issue orders of protection except when the parties are before the court in connection with a complaint filed pursuant to this chapter.
(5) The action may be commenced by service of a summons as in civil cases and tried as a civil action. In the alternative, notice of the filing of the complaint shall be delivered to the defendant or the defendant’s representative or shall be sent to the defendant at the defendant’s last known address. If the defendant fails to make an appearance or file an answer to the complaint, the court may proceed as in civil cases or may issue a warrant for the apprehension of the defendant, directed to any officer in this state authorized to execute warrants, commanding such officer without delay to apprehend the defendant and bring the defendant before the court for the purpose of having an adjudication as to the paternity of the child, and such warrant may be issued to any county of this state.
Title 36, Ch. 2, Part 3, §36-2-305. (2001)
Statute of limitations.
(a) An action to establish the parentage of a child may be instituted before or after the birth of the child and until three (3) years beyond the child’s age of majority. The provisions of this chapter shall not affect the relationship of parent and child as established in § 31-2-105.
(b) An action to establish parentage may be brought on behalf of a child in whose behalf a paternity action could have been brought under this chapter on August 16, 1984, but for whom no such action was brought, or for whom a paternity action was brought but was dismissed because the previous more restrictive statute of limitations was then in effect. Nothing herein shall be construed to permit the filing of any paternity action after the statute of limitations established by subsection (a).
Title 36, Ch. 2, Part 3, §36-2-306. (1997)
Jurisdiction – Venue.
(1) The juvenile court or any trial court with general jurisdiction shall have jurisdiction of an action brought under this chapter; provided, that, in any county having a population not less than eight hundred twenty-five thousand (825,000) nor more than eight hundred thirty thousand (830,000) according to the 1990 federal census or any subsequent federal census, only the juvenile court shall have jurisdiction of an action brought under this chapter.
(2) The court shall have statewide jurisdiction over the parties involved in the case.
(b) Any minimum contact relevant to a child being born out of wedlock that meets constitutional standards shall be sufficient to establish the jurisdiction of the courts of Tennessee over the parents for an action under this chapter. Any conduct in Tennessee that results in conception of a child born out of wedlock shall be deemed sufficient contact to submit the parents to the jurisdiction of the courts of Tennessee for action under this chapter.
(1) The complaint may be filed in the county where the father resides or is found, the county where the mother resides or is found, or the county in which the child resides or is present when the application is made. However, a man who seeks to establish parentage of a child who is the subject of a pending petition for adoption pursuant to chapter 1, part 1 of this title, must file this petition in the court where the adoption petition is filed.
(2) Any complaint to establish parentage which may be filed or which is pending in any court subsequent to the filing of an adoption petition involving the same child shall be transferred for any further proceedings to the court where the adoption proceedings are pending on motion of any party to the paternity complaint or the adoption petition, on the court’s own motion, or upon the request of the court in which an adoption petition is pending.
(3) The adoption court shall have exclusive jurisdiction to determine the issues relating to the parentage of the child.
(4) Any order of parentage entered by any court other than the adoption court subsequent to the date of the adoption petition is filed shall be void, unless the adoption petition is denied or dismissed.
Title 36, Ch. 2, Part 3, §36-2-307. (1998)
Conduct of trial – Expedited hearings.
(a) The trial shall be without a jury.
(b) Hearings under this section shall be expedited on the court’s civil docket.
(c) Upon proper motion, default judgement shall be entered against the defendant upon showing of service of process on the defendant where the defendant has failed to answer or make an appearance within thirty (30) days of service of process.
(d) Bills for the mother’s care during pregnancy and childbirth and genetic testing shall be admissible without requiring third party foundation testimony and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.
Title 36, Ch. 2, Part 3, §36-2-308. (1997)
Tests to determine parentage.
(a) Tests for parentage in actions arising pursuant to this part or in any actions to determine parentage shall be conducted pursuant to § 24-7-112.
(b) The state of Tennessee, its officers, employees, agents or contractors shall not be liable to any person for, nor be ordered to refund to any person, any moneys received pursuant to an order entered pursuant to this part which is subsequently set aside by the court due to a finding of non-paternity of the person previously adjudicated as the child’s father. Nothing in this subsection shall preclude the issuance of a judgement against the mother or actual biological father of the child or children in favor of the person subsequently found not to be the father of a child or children.
Title 36, Ch. 2, Part 3, §36-2-309. (1998)
Temporary order of support.
The court shall, upon motion of the party, enter a temporary order of child support pending the final determination of paternity upon a showing of clear and convincing evidence of parentage on the basis of genetic tests.
Title 36, Ch. 2, Part 3, §36-2-310. (1997)
Order of parentage.
(a) Upon establishing parentage, the court shall make an order declaring the father of the child. This order shall include the following:
(1) The full names and residental and mailing addresses of the mother, father and child, if known;
(2) The dates of birth and social security numbers of the mother, father and the child, if known;
(3) The father’s place of birth, if known;
(4) The home telephone number of the mother and the father, if known;
(5) The driver license numbers of mother and father, if known;
(6) The name, address and telephone number of mother and father’s employers, if known;
(7) The availability of health insurance to cover the child, if known;
(8) Determination of the child’s name on the child’s birth certificate;
(9) Determination of the custody of the child pursuant to chapter 6 of this title;
(10) Determination of visitation or parental access pursuant to chapter 6 of this title;
(A) Determination of child support pursuant to chapter 5 of this title. When making retroactive support awards pursuant to the child support guidelines established pursuant to this subsection (a), the court shall consider the following factors as a basis for deviation from the presumption in the child support guidelines that child and medical support for the benefit of the child shall be awarded retroactively to the date of the child’s birth:
(i) The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;
(ii) The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father’s possible parentage of the child or the location of the child; and
(iii) The attempts, if any, by the child’s mother or caretaker to notify the father of the mother’s pregnancy, or the existence of the child, the father’s possible parentage or the location of the child.
(B) In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support. The court must make a written finding that application of the guidelines would be unjust or inappropriate in order to provide for the best interests of the child or the equity between the parties.
(C) Deviations shall not be granted in circumstances where, based upon clear and convincing evidence:
(i) The father has a demonstrated history of violence or domestic violence toward the mother, the child’s caretaker or the child;
(ii) The child is the product of rape or incest of the mother by the father of the child;
(iii) The mother or caretaker of the child, or the child has a reasonable apprehension of harm from the father or those acting on his behalf toward the mother, the child’s caretaker or the child; or
(iv) The father or those acting on his behalf, has abused or neglected the child.
(D) Nothing in this subdivision (a)(11) shall limit the right of the state of Tennessee to recover from the father expenditures made by the state for the benefit of the child, or the right, or obligation, of the Title IV-D child support agency to pursue retroactive support for the custodial parent or caretaker of the child where appropriate.
(E) Any amounts of retroactive support ordered that have been assigned to the state of Tennessee pursuant to § 71-3-124 shall be subject to the child support distribution requirements of 42 U.S.C. § 657. In such cases, the court order shall contain any language necessary to allow the state to recover the assigned support amounts.
(F) In making any deviations from awarding retroactive support, the court shall make written findings of fact and conclusions of law to support the basis for the deviation, and shall include in the order the total amount of retroactive support that would have been paid retroactively to the birth of the child, had a deviation not been made by the court;
(12) Determination of liability for funeral expense to either or both parties, if the child is deceased;
(13) Determination of liability for a mother’s reasonable expenses for her pregnancy, confinement and recovery to either or both parties; and
(14) Determination of the liability for counsel fees to either or both parties after consideration of all relevant factors.
(b) This order may include the following:
(1) An order of protection; and
(2) Any provision determined to be in the best interests of the child.
(c) All provisions of chapter 5 of this title that relate to child support and § 50-2-105 shall apply to support orders issued in any action under this chapter.
(1) When the court enters an order in which the paternity of a child is determined or support is ordered, enforced or modified for a child, each individual who is a party to any action pursuant to this part shall be immediately required to file with the court and, if the case is a Title IV-D child support case, shall immediately file with the local Title IV-D child support office, (for entry into the state registry of support cases), and shall update, as appropriate, the parties’ (and, for subdivisions (d)(1)(A)-(C), the child’s or children’s):
(A) Full name and any change in name;
(B) Social security number and date and place of birth;
(C) Residential and mailing addresses;
(D) Home telephone numbers;
(E) Driver license number;
(F) The name, address, and telephone number of the person’s employer;
(G) The availability and cost of health insurance for the child; and
(H) Gross annual income.
The requirements of this subdivision may be included in the court’s order.
(2) Each individual who is a party must update changes in circumstances of the individual for the information required by subdivision (d)(1) within ten (10) days of the date of such change. At the time of the entry of the first order pertaining to child support after July 1, 1997, clear written notice shall be given to each party of the requirements of this subsection, procedures for complying with the subsection and a description of the effect or failure to comply. Such requirement may be noted in the order of the court.
(3) In any subsequent child support enforcement action, the delivery of written notice as required by Rule 5 of the Tennessee Rules of Civil Procedure to the most recent residential or employer address shown in the court’s records or the Title IV-D agency’s records as required in subdivision (d)(1) shall be deemed to satisfy due process requirements for notice and service of process with respect to that party if there is a sufficient showing and the court is satisfied that a diligent effort has been made to ascertain the location and whereabouts of the party.
(e) Upon motion of either party, upon a showing of domestic violence or the threat of such violence, the court may enter an order to withhold from public access the address, telephone number, and location of the alleged victim or victims or threatened victim or victims of such circumstances. The clerk of the court shall withhold such information based upon the court’s specific order but may not be held liable for release of such information.
Title 36, Ch. 2, Part 3, §36-2-311. (2003)
Custody and visitation issues.
(a) In any case which is brought by the department of human services or its contractors, the Title IV-D child support office shall have no authority to represent the state of Tennessee on issues of custody or parental access. The fact that custody and parental access are sought in a petition which is filed by the department or its contractors to comply with this part, or that the court orders the department or its contractors to enter the finding of fact or the conclusions of law of the court relative to a custody or parental access determination in its order, shall not be deemed to make the department or its contractors responsible for presenting any evidence on these issues or to have any continuing duty to present evidence on these issues in any subsequent hearing. The department or its contractors shall have the duty to inform the individuals in the Title IV-D case that the department or its contractors will not provide legal assistance relative to custody or parental access and that the individual has a right to independent counsel for such representation.
(b) The department may apply for and utilize any federal grants for the purpose of implementing a pilot project for access and visitation programs. The department may contract with other persons or entities to establish the pilot projects which will be administered by the department; provided, that in establishing any such pilot project through contract, the department shall give preference to existing family preservation services programs, family resource centers, headstart programs and other established programs for children.
Title 36, Ch. 2, Part 3, §36-2-312. (1997)
Inheritance of child from father – Information to commissioner of health – New birth certificates.
(a) When, under the provisions of this chapter, the relationship of father and child is established, the child shall be entitled to inherit from the father as if born to the father in wedlock.
(b) When an order of parentage has been entered, the clerk of the court shall transmit to the commissioner of health on a form prescribed by the commissioner, a written notification as to such order, together with such other facts as may assist in identifying the birth record of the child whose parentage is at issue. The form shall contain at a minimum the information required by § 36-2-311(a)(1)-(8). If such order shall be abrogated by a later judgment or order of the same or a higher court, that fact shall be immediately communicated in writing to the commissioner on a form prescribed by the commissioner by the clerk of the court which entered such order, if the information is available in the court records.
(c)The court shall include in each order of parentage an order that the nonprevailing party or, if parentage was not contested, the person who is being confirmed as the father of the child by the order of parentage, pay into the court an amount equal to the sum of any fees required to be paid by the department of health, or any successor to the department, for the processing or issuance of a birth certificate. Any money paid into court pursuant to this subsection (c) shall be received by the clerk and paid out by the clerk as required by subsection (d).
(d) When an order of parentage has been entered, the clerk of the court shall forthwith transmit a certified copy of the order and the completed application for a new certificate of birth by parentage to the registrar of vital records who shall issue a new certificate of birth by parentage in conformity with the rules and regulations of the department of health. Upon receipt of the fee required by the department of health, the clerk shall transmit such fee to the registrar of vital records. Notwithstanding any law or regulation to the contrary, the registrar shall not be required to issue a new certificate of birth until such fee is paid.
Title 36, Ch. 2, Part 3, §36-2-313. (2007)
The clerk’s fee for services in an application for an order of parentage shall be fifty dollars ($50.00) plus any litigation tax, if applicable to be paid by the party petitioning subject to final assessment by the court.
Title 36, Ch. 2, Part 3, §36-2-314. (1997)
An appeal from any final order of parentage as provided for in this chapter may be taken to the court of appeals pursuant to the Tennessee Rules of Appellate Procedure.
Title 36, Ch. 2, Part 3, §36-2-315. (1997)
Discrimination against children born out of wedlock – Penalty.
(a) No child born out of wedlock shall be deprived of any civil benefit afforded to other citizens by law.
(b) Any person, including any employee or official of any governmental agency, who deprives any person of any civil benefit afforded to other citizens by law, by reason of the child being born out of wedlock, commits a Class C misdemeanor.
Title 36, Ch. 2, Part 3, §36-2-316. (1997)
Official references to illegitimacy.
No explicit references shall be made to illegitimacy in any legal proceeding, record, certificates or other papers except the departments of human services and health may keep records of out-of-wedlock births.
Title 36, Ch. 2, Part 3, §36-2-317. (1997)
This page contains some of the Tennessee Code that governs Paternity issues. Case Law and Amendments to the Law can determine how cases are handled. It is important that you talk with a qualified Family Law Attorney to make sure your rights are protected.
Nashville Family Law Office of Paula Ogle Blair
Putative Father Regsitry - TCA