§ 43-1412 — Paternity; action to establish; procedure; public hearings prohibited; evidence; default judgment; decree; payment of costs and fees

Nebraska § 43-1412

• Jurisdiction: Nebraska
• Ch. 43: Infants and Juveniles

Text

(1) The method of trial shall be the same as that in other civil proceedings, except that the trial shall be by the court without a jury unless a jury is requested (a) by the alleged father, in a proceeding instituted by the mother or the guardian or next friend, or (b) by the mother, in a proceeding instituted by the alleged father. It being contrary to public policy that such proceedings should be open to the general public, no one but the parties, their counsel, and others having a legitimate interest in the controversy shall be admitted to the courtroom during the trial of the case. The alleged father and the mother shall be competent to testify. The uncorroborated testimony (i) of the mother, in a proceeding instituted by the mother or the guardian or next friend, or (ii) of the alleged father, in a proceeding instituted by the alleged father, shall not alone be sufficient to support a verdict or finding that the alleged father is actually the father. Refusal by the alleged father to comply with an order of the court for genetic testing shall be deemed corroboration of the allegation of paternity. A signed and notarized acknowledgment of paternity or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish paternity without the need for foundation testimony or other proof of authenticity or accuracy.
If it is determined in this proceeding that the alleged father is actually the father of the child, a judgment shall be entered declaring the alleged father to be the father of the child.
(2) A default judgment shall be entered upon a showing of service and failure of the defendant to answer or otherwise appear.
(3) If a judgment is entered under this section declaring the alleged father to be the father of the child, the court shall retain jurisdiction of the cause and enter such order of support, including the amount, if any, of any court costs and attorney's fees which the court in its discretion deems appropriate to be paid by the father, as may be proper under the procedure and in the manner specified in section 43-512.04 . If it is not determined in the proceeding that the alleged father is actually the father of the child, the court shall, if it finds that the action was frivolous, award court costs and attorney's fees incurred by the alleged father, with such costs and fees to be paid by the plaintiff.
(4) All judgments under this section declaring the alleged father to be the father of the child shall include the father's social security number. The social security number of the declared father of the child shall be furnished to the clerk of the district court in a document accompanying the judgment.

Legislative History

Source: Laws 1941, c. 81, § 11, p. 325; C.S.Supp.,1941, § 43-711; R.S.1943, § 13-112; R.S.1943, (1983), § 13-112; Laws 1986, LB 79, § 2; Laws 1986, LB 813, § 2; Laws 1994, LB 1224, § 60; Laws 1997, LB 752, § 102; Laws 2004, LB 1207, § 41; Laws 2006, LB 1113, § 41. Annotations: 1. Jurisdiction 2. Burden of proof 3. Request for jury trial 4. Judicial determination of paternity - proceeding 5. Corroboration of testimony 6. Attorney's fees and costs 7. Miscellaneous 1. Jurisdiction Paternity statutes cannot circumscribe the district court’s inherent equitable power to determine child custody. Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014). A district court retains jurisdiction for orders regarding child support notwithstanding the fact that a paternity determination is on appeal. State on Behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996). 2. Burden of proof In a civil action, only a preponderance of the evidence is necessary to sustain the establishment of paternity. State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995). In a paternity proceeding, only a preponderance of evidence is necessary to sustain a verdict. Snay v. Snarr, 195 Neb. 375, 238 N.W.2d 234 (1976). 3. Request for jury trial This section authorizes a plaintiff claiming to be the father of a child born out of wedlock to request a jury trial if he so desires. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985). Jury trial may be obtained if requested by any putative father who is made defendant in any proceedings under 1941 act. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946). 4. Judicial determination of paternity - proceeding In filiation proceedings, only a preponderance of the evidence is necessary to sustain establishment of paternity. In filiation proceedings tried to the trial court without a jury, findings of the trial court have the same effect as a jury verdict, and such findings will not be disturbed unless clearly wrong. The corroboration of testimony required in filiation proceedings may consist of circumstantial evidence. Gregory v. Davis, 214 Neb. 408, 334 N.W.2d 1 (1983). In a proceeding to determine paternity of a child under the provisions of sections 13-101 to 13-112 (transferred to Chapter 43, article 14) the mother is a competent witness on the issue of the child's paternity. Roebuck v. Fraedrich, 201 Neb. 413, 267 N.W.2d 759 (1978). If the mother brings the paternity action within 4 years of the child's birth, she need not bring such action on behalf of the child and the court may award retroactive support. Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005). Relevant evidence of paternity includes evidence of sexual intercourse between the mother and alleged father at any possible time of conception and the results of blood testing. Corroboration means independent evidence which tends to strengthen or otherwise to confirm the testimony of the mother of the child whose paternity is in issue. State on behalf of Cooper v. Harmon, 2 Neb. App. 612, 512 N.W.2d 656 (1994). A "frivolous paternity proceeding" means a paternity suit brought for an improper motive or premised upon a legal position so wholly without merit as to be without rational argument in the law or evidence. State ex rel. Mooney v. Duer, 1 Neb. App. 84, 487 N.W.2d 575 (1992). 5. Corroboration of testimony Corroboration of the mother's testimony that defendant is the father is sufficient, if she be corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal act, the inference of guilt may be drawn. Wade v. Hicks, 191 Neb. 847, 218 N.W.2d 222 (1974). Corroboration of complainant is required. Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452 (1956). Corroboration of mother is required. State ex rel. Klostermeier v. Klostermeier, 161 Neb. 247, 72 N.W.2d 848 (1955). 6. Attorney's fees and costs Subsection (3) of this section specifically provides that attorney fees and costs are allowed in paternity and child support cases brought by a child's mother, father, or guardian or next friend, the county attorney, or another authorized attorney. To the extent State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), holds otherwise, it is overruled. Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999). Attorney fees and costs are statutorily allowed in paternity and child support cases. Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009). This section provides that attorney fees and costs are recoverable in paternity and child support cases, and an award of such fees and costs will be upheld on appeal absent an abuse of discretion. Morrill County on Behalf of Cahoy v. Darsaklis, 7 Neb. App. 489, 584 N.W.2d 36 (1998). 7. Miscellaneous Retroactive support is included in the support that the trial court may order under subsection (3) of this section. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).