Colorado § 13-25-126 - Genetic tests to determine parentage.

§ 13-25-126. Genetic tests to determine parentage.

(1) (a) (I) In any action, suit, or proceeding in which the parentage of a child is at issue, including but not limited to actions or proceedings pursuant to section 14-10-122 (6) or 19-4-107.3, C.R.S., upon motion of the court or any of the interested parties, the court shall order the alleged mother, the child or children, and the alleged father to submit to genetic testing and other appropriate testing of inherited characteristics, including but not limited to blood and tissue type, for the purpose of determining probability of parentage. If a party refuses to submit to these tests, the court may resolve the question of parentage against the party to enforce its order if the rights of others and the interests of justice so require.

(II) A court, pursuant to this section, or delegate child support enforcement unit pursuant to section 26-13.5-105, C.R.S., shall not order genetic testing of a child whose parentage has previously been determined by or pursuant to the law of another state, but a court may stay a support proceeding for such reasonable time as determined by the court to allow the party asserting the defense to pursue the nonparentage claim in the other state.

(b) The tests shall be conducted by a laboratory approved by an accreditation body designated by the secretary of the federal department of health and human services, utilizing any genetic test of a type generally acknowledged as reliable by such accreditation body. Costs of any such expert witness for the first test administered shall be fixed at a reasonable amount and shall be paid as the court orders. If the results of the tests or the expert analysis of inherited characteristics are disputed by any party, the court shall order that an additional test be made by the same or another laboratory at the expense of the party disputing the test results or analysis.

(c) Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody that makes the results of genetic testing admissible without testimony:

(I) The names and photographs of the individuals from whom specimens have been taken;

(II) The names of the individuals who collected the specimens;

(III) The places at which and dates on which the specimens were collected;

(IV) The names of the individuals who received the specimens in the testing laboratory; and

(V) The dates the specimens were received.

(d) A specimen used in genetic testing may consist of one or more samples or a combination of samples, of blood, buccal cells, bone, hair, or other body tissue or fluid. The specimen used in the testing need not be of the same kind for each individual undergoing genetic testing.

(e) Specimens and reports are confidential. An individual who intentionally releases an identifiable specimen of another individual for any purpose other than that relevant to the proceeding regarding parentage without a court order or the written permission of the individual who furnished the specimen commits a class 2 misdemeanor and, upon conviction, shall be punished as provided in section 18-1.3-501 (1).

(f) A report of genetic testing must be in a record, defined in section 19-1-103, and signed under penalty of perjury by a designee of the testing laboratory. A report made pursuant to the requirements of this article 25 is self-authenticating.

(g) Under this section, a man is presumed to be the father of a child if the genetic testing complies with the requirements of this section and the results disclose that the man is not excluded and that the man has at least a ninety-seven percent probability of paternity.

(h) A man presumed to be the father of the child pursuant to paragraph (g) of this subsection (1) may rebut the genetic testing results only by other genetic testing that satisfies the requirements of this section and that:

(I) Excludes the man as the genetic father of the child; or

(II) Identifies another man as the father of the child.

(i) The presumption of parentage of a child born during a marriage may be overcome, as provided in section 19-4-105 (2)(a), if the court finds that the conclusion of the experts conducting the tests, as disclosed by the evidence based upon the tests, shows that one of the spouses is not the parent of the child.

(2) Any objection to genetic testing results shall be made in writing not less than fifteen days before the first scheduled hearing at which the results may be introduced into evidence or fifteen days after motion for summary judgment is served on such person; except that a person shall object to the genetic testing results not less than twenty-four hours prior to the first scheduled hearing if such person did not receive the results fifteen or more days before such hearing. The test results shall be admissible as evidence of paternity in an action filed pursuant to article 10 of title 14, C.R.S., article 4 of title 19, C.R.S., or article 13.5 of title 26, C.R.S., without the need for foundation testimony or other proof of authenticity or accuracy.

(3) For good cause shown, the court may order genetic testing of a deceased individual.

(4) The court may order genetic testing of a brother of a man presumed to be the father of a child if the man is commonly believed to have an identical brother and evidence suggests that the brother may be the genetic father of the child. If genetic testing excludes none of the brothers as the genetic father, and each brother satisfies the requirements as the presumed father of the child under section 19-4-105, C.R.S., without consideration of another identical brother being presumed to be the father of the child, the court may rely on nongenetic evidence to adjudicate which brother is the father of the child.

Source: L. 57: p. 366, § 1. CRS 53: § 52-1-27. C.R.S. 1963: § 52-1-27. L. 67: p. 262, § 46. L. 77: (1)(a) amended, p. 1018, § 2, effective July 1. L. 78: (1)(a), (1)(c)(I), (1)(c)(III), and (1)(c)(IV) amended, p. 262, § 46, effective May 23. L. 83: Entire section R&RE, p. 627, § 1, effective May 26. L. 91: Entire section amended, p. 247, § 1, effective July 1. L. 94: (2) added, p. 1535, § 1, effective July 1. L. 97: (1)(b) and (2) amended, p. 1263, § 4, effective July 1. L. 2003: Entire section amended, p. 1238, § 1, effective July 1. L. 2008: (1)(a) amended, p. 1657, § 4, effective August 15. L. 2011: (1)(a) amended, (SB 11-123), ch. 46, p. 118, § 1, effective August 10. L. 2018: (1)(i) amended, (SB 18-095), ch. 96, p. 753, § 4, effective August 8. L. 2021: (1)(f) amended, (SB 21-059), ch. 136, p. 711, § 16, effective October 1; (1)(e) amended, (SB 21-271), ch. 462, p. 3158, § 156, effective March 1, 2022.

Cross references: (1) For parentage proceedings, see article 4 of title 19.

(2) For the legislative declaration contained in the 1997 act amending subsections (1)(b) and (2), see section 1 of chapter 236, Session Laws of Colorado 1997. For the legislative declaration in SB 18-095, see section 1 of chapter 96, Session Laws of Colorado 2018.

ANNOTATION

Law reviews. For article, "One Year Review of Evidence", see 35 Dicta 44 (1958). For article, "One Year Review of Domestic Relations", see 41 Den. L. Ctr. J. 97 (1964). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Paternity Testing in the Age of DNA", see 19 Colo. Law. 2061 (1990).

The presumption of legitimacy is one of the strongest known to law, and, prior to the adoption of this section, could be overcome only by proof of nonaccess or impotency of the husband; the rule has now been broadened by this section with respect to blood tests in cases where definite exclusion is established. Beck v. Beck, 153 Colo. 90, 384 P.2d 731 (1963).

Under this section, a reputed father is entitled as a matter of right to have blood tests made and to have such tests received in evidence when definite exclusion is established and proper foundation therefor is laid. Beck v. Beck, 153 Colo. 90, 384 P.2d 731 (1963).

The right to have blood tests performed cannot be denied an indigent defendant without violating the equal protection clause of the fourteenth amendment of the United States Constitution. Franklin v. District Court, 194 Colo. 189, 571 P.2d 1072 (1977).

Right to genetic testing does not apply where a legal paternity judgment was already entered and a challenge based on mistake of material fact is barred by the six-month time limit set forth in C.R.C.P. 60(b). People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).

This section and former § 19-6-117 (now § 19-4-117) are inconsistent on the question of who bears the cost of additional blood tests in paternity actions but this section controls. L.D.G. v. E.R., 723 P.2d 746 (Colo. App. 1986).

Conclusive evidence overcomes presumption of legitimacy. Where accuracy of blood test relating to paternity of child was not challenged by the mother and shows conclusively that husband could not have been the father of the child, the evidence of such tests was competent and sufficient to overcome the presumption of legitimacy. Beck v. Beck, 153 Colo. 90, 384 P.2d 731 (1963).

It is abundantly clear that the general assembly intended the section for paternity proceedings to be the only vehicle for establishing paternity because under the statute the putative father has the right to trial by jury in paternity proceedings and blood grouping tests may be ordered by the court and received as evidence, whereas the statute on support proceedings allows neither of the above. In re People in Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972).

No basis for diagnostic testing of minor. There is no statutory basis for a guardian ad litem obtaining, in a paternity proceeding, genetic testing, at the expense of the department of social services or a county, to provide a basis for diagnosing problems that a minor child may encounter in later years. Figueroa v. Juvenile Court, 197 Colo. 510, 595 P.2d 223 (1979).

Evidence that alleged father has been definitely excluded as probable father based on blood test was properly admitted. K.H.R. by and through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990).

Subsection (1)(c) intended to ease burden of establishing the chain of custody of specimens. The use of word "may" was intended to show a permissive alternative is shown by legislative history. K.H.R. by and through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990).

Applied in People in Interest of R.M., 37 Colo. App. 209, 548 P.2d 1282 (1975); Smith v. Casey, 198 Colo. 433, 601 P.2d 632 (1979).