This chapter provides a process for the Court to establish the paternity of a child.
In the Port Gamble S’Klallam Tribe, fathers are important role models who teach respect, values and responsibilities to their children. They care for their children, show them love and point them in the right direction. They support their children in having a safe, secure, healthy, spiritual, happy home life as well as supporting them financially.
The Port Gamble S’Klallam Tribe recognizes that determining biological paternity is important for purposes of tribal membership and the benefits associated with it. This chapter is not intended to take the place of or interfere with confidential acknowledgments of paternity through the Port Gamble S’Klallam Tribe’s Enrollment Office.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
Recognition of Court Ordered Paternity. A court order from another jurisdiction which established paternity will only be recognized by the Port Gamble S’Klallam Community Court if it meets the requirements of section 21.01.19. Paternity orders entered by default violate the public policy of the Port Gamble S’Klallam Tribe.
Recognition of Foreign Paternity Affidavits. The Court may grant recognition to a state affidavit of paternity unless:
(a) 
It was signed by a minor who did not understand the consequences of signing the affidavit; or
(b) 
There is evidence of duress, mistake, or unfair procedure.
Filing for Paternity with Existing Order or Affidavit. A petition for establishment of paternity may be filed in the Port Gamble S’Klallam Community Court even if a state paternity affidavit has been signed or an order regarding paternity has been issued by another court when the petitioner believes that the other process was unfair.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
A paternity proceeding under this chapter may stand alone as a separate proceeding or it may be joined with an action to determine child support at the request of the alleged father or the child’s mother.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The provisions of this chapter may be applied, as far as practicable, to the determination of the existence or nonexistence of a mother and child relationship.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
A petition requesting the Court to establish paternity may be filed by:
(a) 
A child (including an adult “child”), or, if the child is under 18, the child’s legal guardian, if authorized by the Court under 16.03.13;
(b) 
The child’s natural mother;
(c) 
An alleged father of the child; or
(d) 
The Port Gamble S’Klallam Enrollment Committee, when it has reason to believe that the child’s birth certificate or affidavit of paternity are irregular or unreliable.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
A petition to establish paternity, prepared on a form approved by the Court Administrator, shall state:
(a) 
The names, ages, addresses, and tribal affiliations, if any, of the natural mother, the alleged father(s), the child, all others who have legal rights of custody, visitation or support of the child, and of the petitioner;
(b) 
Whether the natural mother and the alleged father are or were married, and the dates of marriage, separation and divorce, if any;
(c) 
Whether the natural mother and alleged father agree that the alleged father is the natural father of the child;
(d) 
Whether there have been any other court or administrative paternity proceedings or state paternity affidavits concerning the child, and whether there have been any termination of parental rights or adoption proceedings;
(e) 
A certified copy of the child’s birth certificate shall be attached to the petition or provided to the Court at least ten (10) days before the first hearing; and
(f) 
Whether a name change for the child is requested.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The natural mother, the child’s legal guardian, the adult child, and each man alleged to be the natural father shall be served with a summons and the petition, as provided in section 21.01.11, notified of all hearings, as provided in section 21.01.16 and given an opportunity to be heard.
In every case in which the natural mother or an alleged father is a minor, the Court shall notify the Port Gamble S’Klallam Indian Child Welfare Program. The Indian Child Welfare worker may appear in court and communicate with the Court and the Port Gamble Child Support Program regarding protection of the minor.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The Court has jurisdiction to decide the issues before it whether or not all the alleged fathers participate in the hearing.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The following rules apply to paternity hearings:
(a) 
All paternity hearings shall be closed unless all parties agree otherwise.
(b) 
The mother of the child and the alleged father(s) may be compelled to testify at the paternity hearing.
(c) 
Testimony of a health care provider concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged for purposes of admitting this evidence at the paternity hearing.
(d) 
If the Petition contains a request that the child’s name be changed, the Court shall hear testimony on this issue.
(e) 
The parties shall provide testimony on how the costs of paternity testing shall be paid. If the testing was paid by the Port Gamble S'Klallam Tribe, the Tribe may waive all or part of the costs or request reimbursement.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The Court may, and at the request of a party shall, require the child, mother and alleged father(s) to submit to genetic tests. An alleged father may be excused from the requirement of genetic tests if the Court determines that there is no reasonable possibility that sexual contact occurred at or near the time of conception. Exceptions to this section are also contained in section 21.02.11 “Good Cause Not to Reveal Father’s Identity,” and 21.02.23 “Disestablishment of Paternity.”
The following requirements apply to genetic testing under this section:
(a) 
Lab Accredited. The tests shall be performed by an accredited paternity genetic testing lab that performs legally and medically acceptable tests, approved by the Tribe or the Court.
(b) 
Common Ancestor. The mother shall notify the genetic testing laboratory if she and any of the alleged fathers have a common ancestor or if there is another possible father who is closely related to the alleged father.
(c) 
Filing Test Results with Court. The party receiving the copy of the genetic test results from the expert shall file them with the Court who shall send all parties a copy of the test results by certified mail, return receipt requested.
(d) 
Admission into Evidence. Unless a party objects to the results of genetic tests in writing at least five (5) days before the hearing, the tests shall be admitted as evidence of paternity without the need for foundation testimony or other proof of authenticity.
(e) 
Affidavit of Genetic Expert. The results of genetic tests must be accompanied by an affidavit from the expert describing the expert's qualifications and analyzing and interpreting the results as well as documentation of the chain of custody of the genetic samples.
(f) 
Contempt of Court. Failure to submit to genetic tests when required by the Court may constitute contempt of court as provided in chapter 1.06.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
A woman may be excused from submitting to genetic testing or from identifying or locating the father of her child when there is good cause not to reveal his identity or location. The Court may hold a closed, ex-parte hearing to determine whether good cause exists. “Good cause” may include, but is not limited to:
(a) 
Cases involving domestic violence;
(b) 
Cases involving incest or rape; or
(c) 
Cases where identification of the father is not in the best interest of child.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The burden of proof shall be the same as that applied to civil actions before the Port Gamble S’Klallam Community Court.
The Court may consider the following types of evidence in paternity cases:
(a) 
Genetic test results;
(b) 
Evidence of sexual intercourse between the mother and an alleged father(s) at any possible time of conception;
(c) 
An expert’s opinion concerning the statistical probability of an alleged father’s paternity, based upon the duration of the mother’s pregnancy;
(d) 
Medical or anthropological evidence relating to an alleged father’s paternity of the child based on tests which may be ordered by the Court and performed by experts;
(e) 
Reputation in the community as to paternity; and
(f) 
Any other reliable evidence which is relevant to the issue of paternity of the child, except that confidential Port Gamble S’Klallam enrollment affidavits of paternity shall only be admissible when offered by the man who signed the affidavit. If the father is deceased, the Enrollment Committee may file a confidential Port Gamble S’Klallam enrollment affidavit of paternity with the Court if the Committee, in its sole discretion, deems it to be in the child’s best interest.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The following are conclusive presumptions in paternity cases that can be overcome only by clear and convincing evidence:
(a) 
Genetic testing which establishes a ninety-nine percent (99%) or greater probability of paternity;
(b) 
A signed birth certificate naming the natural father.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
Paternity orders entered by default are against the public policy of the Port Gamble S’Klallam Tribe.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
When a man has paid child support as the father of a child and the paternity of a different man is established later by the Port Gamble S’Klallam Court based on genetic testing, the Court may order reimbursement of the child support that was paid erroneously only if:
(a) 
The child support payments were retained by a state or tribal government under a permanent assignment of public assistance benefits;
(b) 
Notice of the hearing has been served on the appropriate government agency;
(c) 
The government agency that received and retained the payment is the party ordered to make the reimbursement; and
(d) 
Reimbursement extends back to the date the man can prove he attempted to contest the child support obligation or eighteen months, whichever is longer.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The parties may submit an agreed order establishing the paternity of a child. Before deciding whether to approve the agreed order, the judge shall hold an in-chambers, ex-parte discussion individually with each party to:
(a) 
Explain the proposed agreed order in detail and the consequences of the order and of the person’s failure to comply with agreed terms;
(b) 
Assure that the person’s consent to the proposed agreed order is not the result of coercion, threat, duress, fraud, over-reaching, or improper promise on the part of any person;
(c) 
Explain the person’s right to a spokesperson;
(d) 
Explain the burden of proof as to each issue;
(e) 
Explain that once the person agrees to the proposed order and it is signed and entered by the Court, it will be too late for the person to change his or her mind.
The in-chambers conversation need not be recorded. If the party wants a friend, family member or other person to be present, the judge shall allow it after first speaking alone with the party. If the Court finds that any consent was not truly voluntary, the agreed order shall not be entered and the case shall proceed to a hearing.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
If the Court cannot obtain personal jurisdiction over the natural mother or an alleged father and finds that it cannot make a determination of paternity without that person, the Court may:
(a) 
Request the Port Gamble S’Klallam Child Support Program to have another tribe or state require the person to submit to genetic tests performed by an expert in paternity genetic testing; or
(b) 
Request a tribunal of another tribe or state to require the person to respond to an order by the Port Gamble S’Klallam Community Court the person to submit to genetic tests performed by an expert in paternity genetic testing; or
(c) 
Forward the case to a tribunal of another tribe or state for the sole purpose of determining paternity.
Exclusive Jurisdiction. The Port Gamble S’Klallam Community Court shall retain exclusive, continuing jurisdiction over the case for custody, visitation, child support and all other issues to the fullest extent permissible under applicable law.
Temporary Orders. Pending determination of the paternity issue, the Court may make a temporary order regarding custody and support of the child.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The decision of the Court shall be final for purposes of appeal under section 7.03.01 of the Port Gamble S'Klallam Law and Order Code.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The order determining the existence or nonexistence of the parent-child relationship shall be effective for all purposes. The Court shall provide the Port Gamble S’Klallam Enrollment Office with a copy of the paternity order. A paternity order may be accompanied by any order, temporary or final, authorized by Title 21 or Title 16 under the provisions of the applicable chapter.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The Court may authorize that the child’s name be changed.
If the finding of paternity or the child’s new name varies from the child’s birth certificate, the Court shall order that an amended birth certificate be issued.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The records filed in a paternity action shall be sealed. Only parties to the case may obtain copies, including the Enrollment Committee.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
An action to establish paternity shall not be subject to a statute of limitations.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)
The proceedings in this chapter may be used to disestablish paternity. The limits on who may file an action in section 21.02.05 apply to disestablishment proceedings. However, Port Gamble S’Klallam public policy discourages the disestablishment of paternity. The Court shall require the party challenging a paternity which has been legally acknowledged to show that it is in the best interests of the child to change the status quo, before the Court orders or permits genetic testing; except that if the party challenging a paternity that has been legally acknowledged is the Port Gamble S’Klallam Enrollment Committee, the Enrollment Committee must show it is in the best interest of the Tribe to change the status quo.
(Res. 01 A 117, 12/11/2001, adopted Title 21 on an interim basis; Res. 02 A 098, 9/10/2002, adopted Title 21 as permanent legislation.)