Effective 28 Aug 2009

210.854. Paternity and support, setting aside of judgment, criteria — division to track cases. — 1. In the event of the entry of a judgment or judgments of paternity and support, whether entered in one judgment or separately, a person against whom such a judgment or judgments have been entered may file a petition requesting a circuit court with jurisdiction over the subject child or children to set aside said judgment or judgments in the interests of justice and upon the grounds set forth in this section. Such a petition may be filed at any time prior to December 31, 2011. After that date, the petition shall be filed within two years of the entry of the original judgment of paternity and support or within two years of entry of the later judgment in the case of separate judgments of paternity and support and shall be filed in the county which entered the judgment or judgments of paternity and support. Any such petition shall be served upon the biological mother and any other legal guardian or custodian in the same manner provided for service of process in the rules of civil procedure. The child or children shall be made a party and shall have a guardian ad litem appointed for the child or children before any further proceedings are had. If the child or children are recipients of IV-D services as defined in subdivision (8) of section 454.460, the family support division shall also be made a party and shall be duly served.

2. The petition shall include an affidavit executed by the petitioner alleging that evidence exists which was not considered before entry of judgment and either:

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

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

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

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

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

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

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

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

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

7. The provisions of this section shall not be construed to create a cause of action to recover child support or state debt, under subdivision (2) of subsection 1 of section 454.465 and subsection 10 of section 452.340, that was previously paid pursuant to the order. The petitioner shall have no right for reimbursement for any moneys previously paid pursuant to said order.

8. Any petitioner who has pled guilty to or been found guilty of an offense for criminal nonsupport under section 568.040, as to a child or children who have been found not to be the biological child or children of the petitioner, may apply to the court in which the petitioner pled guilty or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial, or conviction. If the court determines, after hearing, that the petitioner has had a judgment or judgments of paternity and support set aside under this section, the court shall enter an order of expungement. Upon granting of the order of expungement under this subsection, the records and files maintained in any administrative or court proceeding in an associate or circuit division of the circuit court under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The effect of such order shall be to restore such person to the status he or she occupied prior to such arrest, plea, or conviction and as if such event had never taken place. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, plea, trial, conviction, or expungement in response to any inquiry made of him for any purpose whatsoever and no such inquiry shall be made for information relating to an expungement under this section.

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

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(L. 2009 S.B. 141)