Sec. 46b-160. (Formerly Sec. 52-435a). Petition by mother or expectant mother. Venue. Continuance of case. Evidence. Jurisdiction over nonresident putative father. Personal service. Petition to includ - Connecticut Statutes

      Sec. 46b-160. (Formerly Sec. 52-435a). Petition by mother or expectant mother. Venue. Continuance of case. Evidence. Jurisdiction over nonresident putative father. Personal service. Petition to include answer form, notice and application for appointment of counsel. Genetic tests. Default judgment, when. (a)(1)(A) Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother. Such petition may be brought at any time prior to the child's eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition.

      (B) In cases involving public assistance recipients, the petition shall also be served upon the Attorney General who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action.

      (2) The verified petition, summons and order shall be filed in the superior court for the judicial district in which either she or the putative father resides, except that in IV-D support cases, as defined in subdivision (13) of subsection (b) of section 46b-231, and in petitions brought under sections 46b-212 to 46b-213w, inclusive, such petition shall be filed with the clerk for the Family Support Magistrate Division serving the judicial district where either she or the putative father resides.

      (3) (A) The court or any judge, or family support magistrate, assigned to said court shall cause a summons, signed by such judge or magistrate, by the clerk of said court, or by a commissioner of the Superior Court to be issued, requiring the putative father to appear in court at a time and place as determined by the clerk but not more than ninety days after the issuance of the summons to show cause why the request for relief in such petition should not be granted.

      (B) A state marshal, proper officer or investigator shall make due return of process to the court not less than twenty-one days before the date assigned for hearing. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the Department of Social Services and any proper officer authorized by law.

      (4) If the putative father fails to appear in court at such time and place, the court or family support magistrate shall hear the petitioner and, upon a finding that process was served on the putative father, shall enter a default judgment of paternity against such father and such other orders as the facts may warrant. Such court or family support magistrate may order continuance of such hearing; and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child. The court or family support magistrate shall, upon motion by a party, issue an order for temporary support of the child by the respondent pending a final judgment of the issue of paternity if such court or magistrate finds that there is clear and convincing evidence of paternity which evidence shall include, but not be limited to, genetic test results indicating a ninety-nine per cent or greater probability that such respondent is the father of the child.

      (b) If the putative father resides out of or is absent from the state, notice required for the exercise of jurisdiction over such putative father shall be actual notice, and shall be in the manner prescribed for personal service of process by the law of the place in which service is made.

      (c) In any proceeding to establish paternity, the court or family support magistrate may exercise personal jurisdiction over a nonresident putative father if the court or magistrate finds that the putative father was personally served in this state or that the putative father resided in this state and while residing in this state (1) paid prenatal expenses for the mother and support for the child, (2) resided with the child and held himself out as the father of the child, or (3) paid support for the child and held himself out as the father of the child, provided the nonresident putative father has received actual notice of the pending petition for paternity pursuant to subsection (c) of this section.

      (d) The petition, when served pursuant to subsection (c) of this section, shall be accompanied by an answer form, a notice to the putative father and an application for appointment of counsel, written in clear and simple language designed for use by pro se defendants.

      (e) (1) The answer form shall require the putative father to indicate whether he admits that he is the father, denies that he is the father or does not know whether he is the father of the child. Any response to the answer form shall not be deemed to waive any jurisdictional defense.

      (2) The notice to the putative father shall inform him that (A) he has a right to be represented by an attorney, and if he is indigent, the court will appoint an attorney for him, (B) if he is found to be the father, he will be required to financially support the child until the child attains the age of eighteen years, (C) if he does not admit he is the father, the court or family support magistrate may order a genetic test to determine paternity and that the cost of such test shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the petitioner, except that if he is subsequently adjudicated to be the father of the child, he shall be liable to the state or the petitioner, as the case may be, for the amount of such cost and (D) if he fails to return the answer form or fails to appear for a scheduled genetic test without good cause, a default judgment shall be entered.

      (3) The application for appointment of counsel shall include a financial affidavit.

      (f) If the court or family support magistrate may exercise personal jurisdiction over the nonresident putative father pursuant to subsection (d) of this section and the answer form is returned and the putative father does not admit paternity, the court shall order the mother, the child and the putative father to submit to genetic tests. Such order shall be served upon the putative father in the same manner as provided in subsection (c) of this section. The genetic test of the putative father, unless he requests otherwise, shall be made in the state where the putative father resides at a location convenient to him. The costs of such test shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the petitioner, except that if the putative father is subsequently adjudicated the father of the child, he shall be liable to the state or the petitioner, as the case may be, for the amount of the costs.

      (g) The court or family support magistrate shall enter a default judgment against a nonresident putative father if such putative father (1) fails to answer or otherwise respond to the petition, or (2) fails to appear for a scheduled genetic test without good cause, provided a default judgment shall not be entered against a nonresident putative father unless (A) there is evidence that the nonresident putative father has received actual notice of the petition pursuant to subsection (c) of this section and (B) there is verification that the process served upon the putative father included the answer form, notice to the defendant and an application for appointment of counsel required by subsection (e) of this section. Upon entry of a default judgment, a copy of the judgment and a form for a motion to reopen shall be served upon the father in the same manner as provided in subsection (c) of this section.

      (February, 1965, P.A. 406, S. 1; 1967, P.A. 520, S. 1; P.A. 74-183, S. 108, 291; P.A. 75-406, S. 3, 11; 75-420, S. 4, 6; P.A. 76-334, S. 9, 12; 76-436, S. 498, 681; P.A. 77-614, S. 521, 610; P.A. 78-379, S. 21, 27; P.A. 79-560, S. 16, 39; P.A. 85-548, S. 3; P.A. 88-364, S. 60, 123; P.A. 89-360, S. 13, 44, 45; P.A. 93-187, S. 2; 93-262, S. 68, 87; 93-329, S. 2; 93-396, S. 15; June 18 Sp. Sess. P.A. 97-1, S. 56, 75; June 18 Sp. Sess. P.A. 97-7, S. 19, 38; P.A. 00-99, S. 93, 154; P.A. 01-195, S. 41, 181; P.A. 07-247, S. 10.)

      History: 1967 act extended section to expectant mothers; P.A. 74-183 replaced circuit court with court of common pleas and "circuit" with "county or judicial district", effective December 31, 1974; P.A. 75-406 specified that venue in paternity action is to be in accordance with Secs. 52-435a, 52-438 and 52-442a; P.A. 75-420 replaced welfare department with department of social services; P.A. 76-334 specified that petition is to be served on attorney general and that he is to be a party to paternity proceedings in cases involving public assistance recipients and replaced "county or judicial district" with "geographical area"; P.A. 76-436 replaced court of common pleas with superior court and superior court with supreme court where appearing, effective July 1, 1978; P.A. 77-614 replaced department of social services with department of human resources, effective January 1, 1979; P.A. 78-379 required that jurors be selected from judicial district where geographical area is located for trial purposes; P.A. 79-560 added reference to petitions made by income maintenance department investigators; Sec. 52-435a transferred to Sec. 46b-160 in 1979; P.A. 85-548 added provision that paternity petition may be brought any time prior to child's eighteenth birthday, provided liability for past support shall be limited to three years next preceding granting of petition, deleting prior provision which prohibited the bringing of petition later than three years after birth of child or three years after cessation of support contributions whichever is later; P.A. 88-364 changed the filing from the geographical area to the judicial district; P.A. 89-360 added exception for filing paternity petition in IV-D support cases with family support magistrate division, added provision re service of petition in case of child or expectant mother wholly supported by state by any proper officer authorized by law, added references to family support magistrate, and added provision that IV-D paternity cases shall be tried by family support magistrate unless one of parties demands trial by jury in accordance with Sec. 46b-164; P.A. 93-187 made technical changes re commencement of paternity proceedings, summons and service of process; P.A. 93-262 replaced reference to departments of income maintenance and human resources with department of social services, effective July 1, 1993; P.A. 93-329 added Subsecs. (c) to (h), inclusive, re jurisdiction over nonresident putative father, including requirements of personal service, minimum contacts with this state, answer form, notice, genetic tests and provision re entry of default judgments; P.A. 93-396 made a technical change in Subsec. (a); June 18 Sp. Sess. P.A. 97-1 amended Subsec. (a) by adding reference to petitions brought under Secs. 46b-212 to 46b-213v, inclusive, deleted former Subsec. (b) re trial by family support magistrate except when trial by jury is requested by a party to the case and redesignated remaining Subsecs., effective January 1, 1998; June 18 Sp. Sess. P.A. 97-7 amended Subsec. (a) to provide that default judgment of paternity shall be entered upon finding that process served on putative father and to add provision re order of temporary support pending final judgment of paternity if clear and convincing evidence of paternity, amended Subsec. (e)(2) to require default judgment of paternity and amended Subsec. (g) to require entry of default judgment, effective July 1, 1997; P.A. 00-99 replaced reference in Subsec. (a) to sheriff with state marshal, effective December 1, 2000; P.A. 01-195 made technical changes in Subsec. (a) for purposes of gender neutrality, effective July 11, 2001; P.A. 07-247 amended Subsec. (a) to restructure provisions by adding Subdiv. designators (1) to (4), delete requirement that "petition, summons and order shall be on forms prescribed by the Office of the Chief Court Administrator" and replace "46b-213v" with "46b-213w".

      Annotations to former section 52-435a:

      There can be no trial till the child is born. 1 R. 345; see section 52-438a. Discharge by mother. Id., 320. The mother, if plaintiff, must be put to the discovery at the time of her travail, if possible. 2 R. 492; 1 R. 107; but see 43 C. 484; 47 C. 186; 81 C. 7; 93 C. 320; 108 C. 673, contra. Plaintiff must be examined, though the defendant does not appear. 1 R. 345. This is not a criminal proceeding. 2 C. 360; 53 C. 525; 85 C. 327; 118 C. 304. The justice may adjourn the hearing and require the defendant to give bonds for appearance at the adjourned day. 32 C. 223; 105 C. 389. The justice may belong to the town interested. 1 D. 278. Suit by a woman under age; 2 C. 360; by husband and wife. 1 R. 230. Cross-examination of defendant. 28 C. 314. What declarations are and what are not admissible; other evidence. 47 C. 186; 58 C. 292; 67 C. 339; 78 C. 65; 79 C. 97; 81 C. 7. Refusal to give bond on binding over is not a forfeiture of recognizance to appear and abide the order of the lower court. 51 C. 497. Higher court can acquire jurisdiction only by a binding over. 53 C. 526. Presence of defendant not essential to the jurisdiction of the higher court. Id. Jurisdiction of higher court not affected by failure of justice to commit the defendant for want of bond. Id. Bond by putative father for support of child held valid. 54 C. 419. Defective complaint held to have been waived. 58 C. 286. Nature of proceedings. 68 C. 47. Statute must be strictly followed; arrest by indifferent person void; so arrest of one brought wrongfully into jurisdiction. 85 C. 327. Proof of constancy in accusations not necessary to make out prima facie case; statute merely makes constancy of accusation competent evidence. 93 C. 320; 108 C. 673; 114 C. 712; 138 C. 127. Allegation that reputable physician certified that complainant was pregnant not required; allegations held sufficient. 93 C. 322; 147 C. 418. Bond may be ordered to insure defendant's attendance at adjourned sessions of the justice court; sole issue before justice is question of probable cause. 105 C. 390. If accusations are constant, prima facie case is made out by plaintiff, rebuttable only by evidence other than defendant's own testimony. 108 C. 674. Arrest of defendant not necessary to give jurisdiction. 118 C. 306. Obligation of surety on recognizance for appearance does not include duty of seeing that accused conform to judgment by making payments. 128 C. 313. Cited. 131 C. 550. Fundamentally a civil action and may be maintained by a nonresident. It is designed to provide financial assistance for the mother in the support of the child. 146 C. 370. Statute prior to 1959 amendment: "Next court of common pleas for the county in which the complainant dwells" establishes venue rather than jurisdiction of subject matter. Id. Irregularity in physician's certificate does not destroy jurisdiction of the court but may be subject matter for plea in abatement. 147 C. 423. Cited. 156 C. 205. Confers jurisdiction over bastardy actions. 165 C. 33. Motion to open a judgment hereunder denied by the circuit court and sustained on appeal. Appearance of attorney in lieu of person summoned to appear personally not approved. 168 C. 184. This statute omits any authorization for the arrest of the putative father and provides that paternity proceedings shall be initiated upon the verified petition of the mother filed in the court of common pleas. 169 C. 66. Cited. 170 C. 367. Cited. 175 C. 438.

      Cited. 6 CS 156. That a child born to a married woman during wedlock is legitimate is only a presumption and not absolutely conclusive. Discussion of English rule. 11 CS 323. Cited. 17 CS 267. Residence in Connecticut of the mother and child not a jurisdictional requirement; bind over is then to county court of defendant's residence. 20 CS 346. Cited. 34 CS 187, 190; Id., 501. Cited. 36 CS 501.

      Complainant may appeal to appellate division of circuit court on adverse finding on hearing in probable cause. 2 Conn. Cir. Ct. 179. Former statute cited. Id., 581, 582. Defendant's paternity of plaintiff's child must be proved by plaintiff by a fair preponderance of evidence, as in any other civil case. 3 Conn. Cir. Ct. 453. Evidence of substantive facts is essential and they cannot be proved by corroborative evidence consisting only of constancy of accusation. Id. History discussed. Id.; Id., 492-494; Id., 553. Married woman could maintain bastardy proceedings for the support of her child, who was not the child of her husband. Id., 494. Purpose of act. Id., 553, 556. Since this section is civil in nature, the court is not required to advise defendant of his basic constitutional rights. Id. Where sole evidence of paternity was based on prior accusation of plaintiff which she repudiated in court, defendant's motion for judgment notwithstanding the verdict should be granted. 4 Conn. Cir. Ct. 326-329. Proceedings are civil not criminal and general rules respecting civil cases are applicable; in absence of finding of facts, judgment not reviewable on appeal. Id., 443. Cited. Id., 637; 638. Competency of photograph of illegitimate child offered in evidence to show resemblance to defendant not material where other evidence of defendant's relations with plaintiff were sufficient to prove paternity. Id., 713. Expert medical witness called by plaintiff may also give evidence which defendant used to prove his relations with plaintiff were too early to result in birth of child on date established. Verdict for defendant reached on conflicting evidence will not be set aside where jury could reasonably have reached the conclusion it did. 5 Conn. Cir. Ct. 476. Where defendant was living with plaintiff and supporting child she had previously borne him, at time of conception of second child, jury could have reasonably concluded defendant was father of second child. Id., 571. Cited. 6 Conn. Cir. Ct. 339. Constancy of accusation is competent evidence that may be proved in corroboration of plaintiff's testimony. Id., 519.

      Annotations to present section:

      Cited. 180 C. 114. Cited. 188 C. 354. Requires that the paternity proceeding be instituted during lifetime of putative father. 194 C. 52 (See 200 C. 656-663 for reversal). Cited. 196 C. 403; Id., 413. Cited. 197 C. 87. Reversed judgment of appellate court; statute conferred status of party on attorney general. 200 C. 656. New eighteen-year limitation is applied retroactively. 201 C. 16. Cited. 204 C. 760. Cited. 208 C. 21. Section as amended may be applied retroactively. 225 C. 185.

      Cited. 3 CA 212. Cited. 9 CA 93. Amendment (new statute of limitations) applied retroactively. Id., 327. Cited. 11 CA 548. Cited. 14 CA 487. Cited. 15 CA 312. Cited. 19 CA 76. Cited. 37 CA 105. Three-year retroactivity provision in this section is not a statute of limitations, but is a statutory allowance for past child support. 75 CA 625.

      Cited. 35 CS 679. Cited. 38 CS 680. Court finds statute's three-year limitation period not sufficiently long to withstand equal protection scrutiny. (U.S. Const. Amdts. Art. XIV, Sec. 1, fn 4). 40 CS 6. Cited. 42 CS 562.

      Subsec. (a):

      Cited. 234 C. 51.

      Cited. 34 CA 129; judgment reversed, see 234 C. 51.