210.854. Paternity and support, setting aside of judgment, criteria--division to track cases. - Missouri Statutes

Paternity and support, setting aside of judgment, criteria--divisionto track cases.

210.854. 1. In the event of the entry of a judgment or judgments ofpaternity and support, whether entered in one judgment or separately, a personagainst whom such a judgment or judgments have been entered may file apetition requesting a circuit court with jurisdiction over the subject childor children to set aside said judgment or judgments in the interests ofjustice and upon the grounds set forth in this section. Such a petition maybe filed at any time prior to December 31, 2011. After that date, thepetition shall be filed within two years of the entry of the original judgmentof paternity and support or within two years of entry of the later judgment inthe case of separate judgments of paternity and support and shall be filed inthe county which entered the judgment or judgments of paternity and support.Any such petition shall be served upon the biological mother and any otherlegal guardian or custodian in the same manner provided for service of processin the rules of civil procedure. The child or children shall be made a partyand shall have a guardian ad litem appointed for the child or children beforeany further proceedings are had. If the child or children are recipients ofIV-D services as defined in subdivision (8) of section 454.460, RSMo, thefamily support division shall also be made a party and shall be duly served.

2. The petition shall include an affidavit executed by the petitioneralleging that evidence exists which was not considered before entry ofjudgment and either:

(1) An allegation that genetic testing was conducted within ninety daysprior to the filing of such petition using DNA methodology to determine theprobability or improbability of paternity, and performed by an expert asdefined in section 210.834. The affidavit shall also allege that the testresults, which are attached thereto, indicate that a person subject to thechild support payment order has been excluded as the child's father; or

(2) A request to the court for an order of genetic paternity testingusing DNA methodology.

3. The court, after a hearing wherein all interested parties have beengiven an opportunity to present evidence and be heard, and upon a finding ofprobable cause to believe said testing may result in a determination ofnonpaternity, shall order the relevant parties to submit to genetic paternitytesting. The genetic paternity testing costs shall be paid by the petitioner.

4. Upon a finding that the genetic test referred to herein was properlyconducted, accurate, and indicates that the person subject to the childsupport payment order has been excluded as the child's father, the courtshall, unless it makes written findings of fact and conclusions of law that itis in the best interest of the parties not to do so:

(1) Grant relief on the petition and enter judgment setting aside theprevious judgment or judgments of paternity and support, or acknowledgment ofpaternity under section 210.823 only as to the child or children found not tobe the biological child or children of the petitioner;

(2) Extinguish any existing child support arrearage only as to the childor children found not to be the biological child or children of thepetitioner; and

(3) Order the department of health and senior services to modify thechild's birth certificate accordingly.

5. The provisions of this section shall not apply to grant relief to theparent of any adopted child.

6. A finding under subsection 4 of this section shall constitute amaterial mistake of fact under section 210.823.

7. The provisions of this section shall not be construed to create acause of action to recover child support or state debt, under subdivision (2)of subsection 1 of section 454.465, RSMo, and subsection 10 of section452.340, RSMo, that was previously paid pursuant to the order. The petitionershall have no right for reimbursement for any moneys previously paid pursuantto said order.

8. Any petitioner who has pled guilty to or been found guilty of anoffense for criminal nonsupport under section 568.040, RSMo, as to a child orchildren who have been found not to be the biological child or children of thepetitioner, may apply to the court in which the petitioner pled guilty or wassentenced for an order to expunge from all official records all recordationsof his arrest, plea, trial, or conviction. If the court determines, afterhearing, that the petitioner has had a judgment or judgments of paternity andsupport set aside under this section, the court shall enter an order ofexpungement. Upon granting of the order of expungement under thissubsection, the records and files maintained in any administrative or courtproceeding in an associate or circuit division of the circuit court under thissection shall be confidential and only available to the parties or by order ofthe court for good cause shown. The effect of such order shall be to restoresuch person to the status he or she occupied prior to such arrest, plea, orconviction and as if such event had never taken place. No person as to whomsuch order has been entered shall be held thereafter under any provision ofany law to be guilty of perjury or otherwise giving a false statement byreason of his failure to recite or acknowledge such arrest, plea, trial,conviction, or expungement in response to any inquiry made of him for anypurpose whatsoever and no such inquiry shall be made for information relatingto an expungement under this section.

9. Beginning in 2010, the family support division shall track and reportto the general assembly the number of cases known to the division in which acourt, within the calendar year, set aside a previous judgment or judgments ofpaternity and support under subsection 4 of this section. The family supportdivision shall submit the report annually by December thirty-first.

(L. 2009 S.B. 141)