CHAPTER 25-8
PATERNITY PROCEEDINGS
25-8-1 25-8-1, 25-8-2. Repealed by SL 1984, ch 190, §§ 1, 2
25-8-3 Liability for pregnancy, childbirth, and postpartum expenses.
25-8-4 25-8-4. Repealed by SL 1984, ch 190, § 4
25-8-5 Custodian's recovery of support from noncustodian--Period support recoverable.
25-8-6 25-8-6. Repealed by SL 1984, ch 190, § 6
25-8-7 Proceedings to determine paternity or compel support--Civil action and procedure--Remedies authorized.
25-8-7.1 Court ordered testing for paternity--Filing of results.
25-8-7.2 Persons authorized to perform test--Liability.
25-8-7.3 Test results--Documentation--Filing objections to admissibility.
25-8-8 Agreement on father's liability not binding unless judicially approved--Other remedies barred when approved and performed.
25-8-9 Time for bringing proceedings.
25-8-10 25-8-10, 25-8-11. Repealed by SL 1984, ch 190, §§ 9, 10
25-8-12 Timing of proceeding.
25-8-13 25-8-13 to 25-8-30. Repealed by SL 1984, ch 190, §§ 12 to 29
25-8-31 25-8-31. Repealed by SL 2014, ch 121, § 5.
25-8-32 25-8-32 to 25-8-40. Repealed by SL 1984, ch 190, §§ 30 to 38
25-8-41 25-8-41. Repealed by SL 1977, ch 189, § 126
25-8-42 25-8-42 to 25-8-45. Repealed by SL 1984, ch 190, §§ 39 to 42
25-8-46 Terminology used in records of children born out of wedlock.
25-8-47 25-8-47, 25-8-48. Repealed by SL 1984, ch 190, §§ 43, 44
25-8-49 Admission of paternity as prima facie evidence.
25-8-50 Voluntary hospital-based paternity establishment program.
25-8-51 Forwarding of affidavit of paternity to Department of Social Services.
25-8-52 Rebuttable presumption of paternity--Signed and notarized affidavit.
25-8-53 Reimbursement of reasonable costs for affidavit of paternity.
25-8-54 Use of forms and information prescribed by department.
25-8-55 Default judgment establishing paternity.
25-8-56 Judgment of paternity--Full faith and credit.
25-8-57 Rebuttable presumption of legitimacy.
25-8-58 Genetic test results.
25-8-59 Actions contesting rebuttable presumption of paternity.
25-8-60 Circumstances where name of father appears with birth record for out of wedlock birth.
25-8-61 Trial by jury prohibited in paternity action.
25-8-62 Admissible medical billing evidence--Proceedings to compel support.
25-8-63 Filing affidavits or adjudications of paternity.
25-8-64 Setting aside presumption or prior determination of paternity based on genetic test results--Factors in determining best interest of the child.
25-8-3. Liability for pregnancy, childbirth, and postpartum expenses.
The father and mother of a child born out of wedlock are jointly and severally liable to pay the reasonable expenses related to the mother's:
(1) Pregnancy or prenatal care for the child;
(2) Labor and delivery of the child; and
(3) Postpartum recovery and any medical complications arising from pregnancy with the child.
Source: SDC 1939 & Supp 1960, § 37.2101; SL 1984, ch 190, § 3; SL 1997, ch 155, § 31; SL 2023, ch 84, § 1.
25-8-5. Custodian's recovery of support from noncustodian--Period support recoverable.
The custodian may recover support for a period of three years before the date of application with any Title IV-D agency, the date of filing with a court of competent jurisdiction, or the date of a written demand served personally or by registered or certified mail, return receipt requested, upon the noncustodial parent at the noncustodial parent's last known address, whichever occurs earlier.
Source: SDC 1939 & Supp 1960, § 37.2102; SL 1984, ch 190, § 5; SL 2005, ch 134, § 13; SL 2013, ch 119, § 14.
25-8-7. Proceedings to determine paternity or compel support--Civil action and procedure--Remedies authorized.
An action to determine paternity or proceedings to compel support by a father, including a proceeding to compel payment of reasonable expenses pursuant to § 25-8-3, are civil actions governed by the Rules of Civil Procedure. They are not exclusive of other proceedings that may be available on principles of law or equity.
Upon determining paternity of a child, the court shall give judgment declaring the paternity of the father to the child. The court may award a money judgment to the appropriate party for the recovery of any of the following reasonable expenses:
(1) Those provided in § 25-8-3;
(2) For the education, support, or funeral expenses for the child; or
(3) For any other expenses with respect to the child as the court deems reasonable.
The court shall enter an order for the support and custody of the child. The court may require the person ordered to pay support to give reasonable security for providing the support. The court may modify or vacate any order issued pursuant to this section at any time.
Source: SDC 1939 & Supp 1960, § 37.2106; SL 1984, ch 190, § 7; SL 1988, ch 204; SL 2023, ch 84, § 2.
25-8-7.1. Court ordered testing for paternity--Filing of results.
In any action or proceeding in which the parentage of a child is at issue, including disestablishment proceedings pursuant to § 25-8-64, upon motion of the court, the department, or any of the interested parties, the court shall, for good cause shown, order the mother, the child, or any alleged father to submit to an examination of blood, tissue, or other bodily substances for the purpose of testing any genetic systems that are generally accepted within the scientific community for the conclusive determination of paternity probability. The results of the tests, together with the opinions and conclusions of the testing laboratory, shall be filed with the court. Upon written agreement of the mother and any presumed or alleged father, tests may be conducted prior to filing of an action. If the action is then filed, the test results shall be filed with the court and admitted into evidence as provided in § 25-8-7.3.
Source: SL 1989, ch 221, § 1; SL 1994, ch 204, § 13; SL 2001, ch 135, § 1; SL 2013, ch 119, § 15.
25-8-7.2. Persons authorized to perform test--Liability.
Only a physician, laboratory technician, registered nurse, physician's assistant, phlebotomist, expanded role licensed practical nurse, medical technician, or medical technologist, acting under court order, or at the request of both the mother and any alleged father of the child, may withdraw blood for the purpose of testing genetic systems to determine parentage. Tissue, saliva, or other bodily substances may be withdrawn, by a qualified person, acting under court order, or at the request of both the mother and any alleged father of the child, using a noninvasive procedure, for the purpose of testing genetic systems to determine parentage. No person, and no entity, hospital, or laboratory employing such person, is liable for damages to the party from whom the blood, tissue, or other bodily substance is withdrawn, if the withdrawal is administered with usual and ordinary care.
Source: SL 1989, ch 221, § 2; SL 1994, ch 204, § 14; SL 2001, ch 135, § 2.
25-8-7.3. Test results--Documentation--Filing objections to admissibility.
The chain of custody of the blood, tissue, or other bodily substance taken under §§ 25-8-7.1 and 25-8-7.2 may be established through certified documentation of the change of custody if such documentation was made at or near the time of the change of custody, if it was made in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the documentation. Any objections to the admissibility of the genetic test results shall be made in writing and filed with the court at least twenty days prior to any trial or hearing to establish paternity. If written objections are not filed with the court, the genetic test results are admissible as evidence of paternity without further testimony regarding foundation, accuracy, or authenticity.
Source: SL 1989, ch 221, § 3; SL 1994, ch 204, § 15.
25-8-8. Agreement on father's liability not binding unless judicially approved--Other remedies barred when approved and performed.
An agreement or compromise made by the mother or child or by some authorized person on their behalf, with the alleged father concerning the support of the child born out of wedlock is binding upon the mother and child only if adequate support is secured by payment, or otherwise, and if approved by a court having jurisdiction to compel support of the child.
The performance of the agreement, when approved, bars other remedies of the mother or child for the support of the child.
The approval by the court shall be entered by the court as a judgment of paternity and order for support, and the judgment and order are enforceable as provided by law. An agreement which does not meet the requirements of this statute is void.
Source: SDC 1939 & Supp 1960, § 37.2126; SL 1984, ch 190, § 8.
25-8-9. Time for bringing proceedings.
Proceedings to establish or disestablish paternity and enforce the obligation of the father may be brought at any time before the eighteenth birthday of the child.
Source: SDC 1939 & Supp 1960, § 37.2131; SL 1983, ch 207, § 2; SL 1986, ch 218, § 57; SL 1989, ch 222; SL 2013, ch 119, § 16.
25-8-12. Timing of proceeding.
The proceeding to determine paternity or compel support by a father, including a proceeding to compel payment of reasonable expenses pursuant to § 25-8-3, may be instituted during the pregnancy of the mother or after the birth of the child. Except with the consent of the person alleged to be the father, the trial may not be had until after the birth of the child.
Source: SDC 1939 & Supp 1960, § 37.2108; SL 1984, ch 190, § 11; SL 2023, ch 84, § 3.
25-8-46. Terminology used in records of children born out of wedlock.
In all records, certificates, or other papers hereafter made or executed, other than birth records and certificates or records of judicial proceedings in which the question of birth out of wedlock is at issue, requiring a declaration by or notice to the mother of a child born out of wedlock or otherwise requiring a reference to the relation of a mother to such a child, it shall be sufficient for all purposes to refer to the mother as the parent having the sole custody of the child or to the child as being in the sole custody of the mother, and no explicit reference shall be made to illegitimacy, and the term natural shall be deemed equivalent to the term illegitimate when referring to parentage or birth out of wedlock.
Source: SDC 1939 & Supp 1960, § 37.2134.
25-8-49. Admission of paternity as prima facie evidence.
An admission by an alleged father of paternity of a child born out of wedlock, other than completion of an affidavit of paternity which creates a presumption of paternity as specified within this chapter, is prima facie evidence of paternity.
Source: SL 1984, ch 190, § 48; SL 1994, ch 204, § 17.
25-8-50. Voluntary hospital-based paternity establishment program.
Upon the birth of a child to an unmarried woman, and prior to discharge, any hospital, physician, health care provider, midwife, or nurse who assists in the birth of the child shall:
(1) Provide an opportunity for the child's mother and alleged father to sign under oath an affidavit of paternity; and
(2) Provide to the mother and to the alleged father, any necessary oral, video, audio, or written information furnished by the Department of Social Services which describes, among other things, the rights and responsibilities of parentage; the benefits of having the child's paternity established; the alleged father's legal rights and responsibilities, including his right to request genetic testing; the child's right to receive child support; that a signed affidavit of paternity creates a rebuttable presumption of paternity; that a signed affidavit of paternity allows the establishment of a support obligation without requiring further proceedings to establish paternity; and, that completion of the affidavit of paternity is voluntary and is not required of either the mother or the alleged father.
If obtained, the fully completed, signed, and notarized original affidavit of paternity shall be forwarded to the Department of Health as provided in chapter 34-25 within seven days following the birth of the child.
Source: SL 1994, ch 204, § 1; SL 1997, ch 155, § 32; SL 1998, ch 157, § 10.
25-8-51. Forwarding of affidavit of paternity to Department of Social Services.
Notwithstanding § 34-25-16.4, upon request from the Department of Social Services, the Department of Health shall forward to the Department of Social Services a copy of any affidavit of paternity on file with the Department of Health.
Source: SL 1994, ch 204, § 2.
25-8-52. Rebuttable presumption of paternity--Signed and notarized affidavit.
A signed and notarized affidavit of paternity creates a rebuttable presumption of paternity, admissible as evidence of paternity, and allows the Department of Social Services to proceed to establish a support obligation in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further proceedings to establish paternity.
Source: SL 1994, ch 204, § 3.
25-8-53. Reimbursement of reasonable costs for affidavit of paternity.
The hospital, physician, health care provider, or nurse is entitled to reimbursement for all reasonable costs associated with obtaining the affidavit of paternity. The Department of Social Services shall establish by rules, promulgated pursuant to chapter 1-26, the amount of reasonable costs, which may not exceed the amount for which federal financial participation is available, and the procedures for claiming such reimbursement from the department.
Source: SL 1994, ch 204, § 4.
25-8-54. Use of forms and information prescribed by department.
All hospitals, physicians, health care providers, certified nurse midwives, and nurses shall use all forms and written information as prescribed by the Department of Social Services.
Source: SL 1994, ch 204, § 5; SL 2017, ch 171, § 50.
25-8-55. Default judgment establishing paternity.
Any default judgment establishing paternity shall be obtained in accordance with the provisions of § 15-6-55.
Source: SL 1994, ch 204, § 7.
25-8-56. Judgment of paternity--Full faith and credit.
Any judgment of paternity, whether established through a voluntary acknowledgment process, or established by a court or administrative entity of this state, or any other state or jurisdiction, is entitled full faith and credit in this state.
Source: SL 1994, ch 204, § 8.
25-8-57. Rebuttable presumption of legitimacy.
Any child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate to that marriage even if the marriage is subsequently declared to be null and void, or subsequently dissolved by divorce. This rebuttable presumption of legitimacy can only be disputed by the husband or wife, or a descendant of one or both of them, or a potential biological father of the child. The potential biological father has standing to file an action to rebut this presumption prior to obtaining genetic test results. The potential biological father may not rebut the presumption without genetic test results meeting the requirements of § 25-8-58 establishing that he is the biological father of the child.
This presumption may be specifically rebutted pursuant to § 25-8-64.
Source: SL 1994, ch 204, § 9; SL 2013, ch 119, § 17.
25-8-58. Genetic test results.
Genetic test results establishing a threshold probability of paternity of ninety-nine percent or more shall create a rebuttable presumption of paternity and allow the Department of Social Services to establish a support obligation in accordance with the provisions of §§ 25-7A-5 to 25-7A-8, inclusive, without requiring any further proceedings to establish paternity.
Source: SL 1994, ch 204, § 10.
25-8-59. Actions contesting rebuttable presumption of paternity.
Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in a case where there are allegations of fraud, duress, or material mistake of fact. In a case involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party. This section does not apply to any proceeding under § 25-8-64.
Source: SL 1994, ch 204, § 11; SL 1997, ch 155, § 34; SL 1998, ch 157, § 11; SL 2018, ch 163, § 1.
25-8-60. Circumstances where name of father appears with birth record for out of wedlock birth.
In any out of wedlock birth, the name of the father shall be included within the birth record of the child only if the father and mother have signed an affidavit of paternity, or a court or administrative tribunal of competent jurisdiction has issued an order which adjudicates the paternity of the child.
Source: SL 1997, ch 155, § 33.
25-8-61. Trial by jury prohibited in paternity action.
In any action to establish paternity within this state, trial by jury is not allowed.
Source: SL 1997, ch 155, § 35.
25-8-62. Admissible medical billing evidence--Proceedings to compel support.
In any action to establish paternity, or a proceeding to compel support, including a proceeding to compel payment of reasonable expenses pursuant to § 25-8-3, medical bills related to a mother's pregnancy and prenatal care, labor and delivery, postpartum recovery, and medical complications arising from pregnancy, and genetic testing bills, are admissible as evidence without foundation testimony, and shall constitute prima facie evidence of the amounts incurred.
Source: SL 1997, ch 155, § 36; SL 2023, ch 84, § 4.
25-8-63. Filing affidavits or adjudications of paternity.
Every affidavit or adjudication of paternity shall be filed with the Department of Health for comparison with information contained within the state case registry.
Source: SL 1997, ch 155, § 37.
25-8-64. Setting aside presumption or prior determination of paternity based on genetic test results--Factors in determining best interest of the child.
The court may at any time before the child turns eighteen, find that a presumed or legally determined father is not the biological father of a child, based on genetic test results that either exclude the presumed or legally determined father as the biological father of the child or establish another person as the biological father of the child by the standards set in § 25-8-58. The court may under such circumstances set aside a presumption or prior determination of paternity if it finds that setting aside a presumption or prior determination of paternity is in the best interest of the child. The court may consider any of the following factors in determining the best interests of the child:
(1) The length of time between the proceeding to adjudicate parentage and the time that the presumed or legally determined father was placed on notice that he might not be the genetic father;
(2) The length of time during which the presumed or legally determined father has assumed the role of father of the child;
(3) The facts surrounding the presumed or legally determined father's discovery of his possible nonpaternity;
(4) The nature of the relationship between the child and the presumed or legally determined father;
(5) The age of the child;
(6) The harm or benefit that may result to the child if the presumed or legally determined paternity is successfully disproved;
(7) The nature of the relationship between the child and any presumed or legally determined father;
(8) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
(9) Any additional factors deemed by the court to be relevant to its determination of the best interest of the child.
Source: SL 2013, ch 119, § 18.
