Resolution No. 011-13 — Paternity

WHEREAS, The Stockbridge-Munsee Community, Band of Mohican Indians, is a federally recognized Indian tribe governed by the Stockbridge-Munsee Tribal Council pursuant to authority vested in the Council by a Constitution approved in November 1937; and

WHEREAS, The Stockbridge-Munsee Tribal Council has the authority under its Constitution and its inherent rights as a sovereign nation to act on behalf of the Community in area of economic affairs and other issues of self-governance; and

WHEREAS, The Stockbridge-Munsee Tribal Council desires to revise Stockbridge-Munsee Tribal Law Ch. 12 Paternity.

NOW THEREFORE BE IT RESOLVED, the Stockbridge-Munsee Tribal Council hereby adopts the amendments to Chapter 12, which include the following changes:

• Amending Chapter 12 Heading by deleting "YOUTH CODE"; and
• Amending Section 12.1 by deleting "Paternity" and inserting "Purpose. This law is intended to be construed and applied liberally to assist the Tribe, mothers and potential fathers in determining the paternity of all children subject to the Tribe's jurisdiction and the corresponding rights and responsibilities that a parent has to a child."; and
• Amending Section 12.1 (A)by deleting "Custody - The biological mother of a child born out of wedlock has all the rights and responsibilities consistent with the rights and responsibilities of a parent of a biological child except where the court grants legal custody to another person or transfers legal custody to an agency."; and
• Amending Section 12.1 (B) by deleting "Acknowledgment of Paternity - The putative father of a child born out of wedlock may assume parental responsibility for the child and recognize such child as his biological child heir and offspring by executing a formal acknowledgment of paternity on a form provided for that purpose by the Indian Child Welfare Worker, or the Tribal Court. The acknowledgment shall also be signed by the mother of the child."; and
• Amending Section 12. 2 (A) by inserting "the child's legal guardian and the Tribal Child Support Agency or Indian Child Welfare…"; deleting "Upon the filing of a petition, the court clerk shall issue a summons to the putative father or, if the petition is brought by the putative father, so the mother or legal custodian setting a date for an initial hearing and commanding appearance at the hearing."; and
• Amending Section 12.2 (B) (1) by inserting "…If there is evidence that the child or the parties may be in danger of physical or emotional harm by the disclosure of the address, this shall be redacted." ; and
• Amending Section 12. 2 (B) (6) by deleting "The petitioner's interest in the matter." And inserting "A statement from the moving party setting for the reasonable possibility of the requisite sexual contact between the parties."
• Amending 12.2 (B)by adding 12.2 (B) (7) and inserting "The petitioner's interest in the matter."; and
• Amending Section 12.2 (C) by deleting "Indian Child Welfare Worker" and inserting " Tribal Child Support Agency or Indian Child Welfare if they hold an interest in the action by ordinary mail."; deleting "filed" and inserting "filed"; and
• Amending Section 12. 2 (D) by deleting "brought by a party other than the child…"; and
• Amending Section 12.3 (C) by deleting "…and the availability, if any, of free or low cost representation for the indigent."; and
• Amending Section 12.3 (D)by deleting "… provided the party so requesting shall pay the costs thereof, except where such costs are awarded as part of an adjudicated proceeding."; and
• Amending Section 12.3 (E)by inserting "…, or did"; deleting "eight (8)" and inserting "six (6)"; deleting "or that another man had sexual intercourse with the mother during the period of time."; and
• Amending Section 12.4 (A)by renumbering to Section 12.4 (B); inserting "upon its own discretion,"; and "shall"; inserting "or the Tribal Child Support Agency"; deleting "the Court shall"; deleting "or"; inserting ", mother, or direct descendant of the mother or putative father if one of the parties is deceased,"
• Amending Section 12.4 (A) by adding "Should the Respondent fail appear at the initial hearing and the Petitioner provides credible evidence that there was requisite sexual contact during the conceptive period, the Tribal Court shall order genetic testing be conducted. A copy of the Order for Genetic Testing shall be sent to the Petitioner and Respondent by the Tribal Clerk of Court. The Order shall indicate the date, time and place that the parties must appear at to provide a genetic testing sample."; and
• Amending Section 12.4 (B)by renumbering to Section 12.4 (C); deleting "If the Court deems it necessary, for the sole purpose of determining paternity, the Court shall order any other individual, including any male witness who testifies or will testify about his sexual relations with the biological mother at a possible time of conception to submit to genetic tests."; inserting "Genetic tests shall be performed by a person certified to collect genetic samples and be analyzed by an accredited genetic testing laboratory."; and
• Amending Section 12.4 (B) by renumbering to 12.4 (D); deleting "desirable" and inserting "necessary"; and
• Amending 12.4 (C) by renumbering "Whenever the results of the genetic tests exclude the putative father as the biological father of the child, this evidence shall be conclusive evidence of nonpaternity and the Court shall dismiss the action." to Section 12.4 (F); and deleting "Whenever the results of the tests exclude any male witness, the tests shall be conclusive evidence of nonpaternity of that male witness."; renumbering "If any party refuses to submit to genetic tests this fact shall be taken into account as evidence and, a default judgment may be entered by the Court and such refusal shall be deemed in Contempt of the Court in accordance with Stockbridge-Munsee Tribal Law Ch. 1.14 - 1.20." to Section 12.4 (G); renumbering "If the action was brought by the child's biological mother but she refuses to submit herself or the child to the genetic tests, the action shall be dismissed." to Section 12.4 (H); and
• Amending Section 12.4 by adding "Section (E) If genetic tests show that the putative father is the biological father by a percentage of 96.0% or higher, paternity is presumed and he shall be adjudicated the legal father at the final paternity hearing."; and
• Amending Section 12.5 by inserting "and the percentage of probability is 96.0% or lower,"; deleting "a" and inserting "an"; and
• Amending Section 12.6 (B)by inserting "and"; deleting "support"; inserting "pursuant to Stockbridge-Munsee Tribal Law Ch. 62.8 as if the parents had been married."; and
• Amending Section 12.6 by adding "Section (C) "If paternity is established, the judgment may make provisions for child support and medical support pursuant to Stockbridge-Munsee Tribal Law Ch. 28 Child Support Order if requested by either parent or if the custodial parent and/or child is receiving IV-A or IV-E benefits."; and
• Amending Section 12.6 by adding "Section (D) One or both parties shall be ordered to repay the costs of genetic tests, unless one or more of the parties have income that falls 175% or more below federal poverty levels."; and
• Amending Section 12.6 by adding "Section (E) Establishment of paternity shall have no effect on enrollment with the Stockbridge-Munsee Community, but may be utilized by a party when making an application for enrollment with the Tribe."; and
• Amending Section 12.7 by deleting "putative" and inserting "alleged"; inserting "This presumption will only be effective if the parties complete and file with the WI Department of Vital Records an Acknowledgment of Marital Child and the husband's name is added to the official birth record. If the birth record does not contain the name of the father, a paternity action may be brought forward to Tribal Court."; and
• Amending Section 12.2 Petition to Determine Paternity by renumbering to Section 12.3 and inserting "Definitions (A)-(M)" into Section 12.2; and
• Amending Section 12.3 Initial Hearing by renumbering to Section 12.4; and
• Amending Section 12.4 Genetic Tests by renumbering to Section 12.5; and
• Amending Section 12.5 Paternity Hearing by renumbering to Section 12.6; and
• Amending Section 12.6 Judgment by renumbering to Section 12.8 and inserting "Special Circumstances. There are special circumstances in which the establishment of paternity may not be in the best interests of the child. They include: (A) If the child subject to the action was conceived as a result of rape or incest and the mother has requested that paternity not move forward, then the Tribal Court will dismiss the paternity action. (B) IF there is a pending adoption of the child and the establishment of paternity is not in the best interest of the child, then the Tribal Court will dismiss the paternity action." into Section 12.7; and
• Amending Section 12.7 Effect of Marriage by Biological Mother and Putative Father by renumbering to Section 12.9.