Delaware Trial Handbook § 19:2. GENETIC TESTING IN PATERNITY CASES

Under the Uniform Parentage Act,9 the accused in a paternity suit can be compelled to submit to genetic testing to determine paternity if the request for testing is supported by the sworn statement of a party to the proceeding (1) alleging paternity and stating facts establishing a reasonable probability of the requisite sexual contact between the individuals; or (2) denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child.10 A support-enforcement agency may order genetic testing only if there is no presumed, acknowledged, or adjudicated father.10.1 If a request for genetic testing of a child is made before birth, the court or support-enforcement agency may not order in-utero testing.10.2 If 2 or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.10.3

Genetic testing must be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by: (1) The American Association of Blood  Banks, or a successor to its functions; (2) The American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or (3) An accrediting body designated by the federal Secretary of Health and Human Services.10.4

A specimen used in genetic testing may consist of one or more samples, or a combination or 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.10.5

Based on the ethnic or racial group of an individual, the testing laboratory must determine the databases from which to select frequencies for use in calculation of the probability of paternity. If there is disagreement as to the testing laboratory’s choice: (1) the individual objecting may require the testing laboratory, within 30 days after receipt of the report of the test, to recalculate the probability of paternity using an ethnic or racial group different from that used by the laboratory; (2) the individual objecting to the testing laboratory’s initial choice shall (i) if the frequencies are not available to the testing laboratory for the ethnic or racial group requested, provide the requested frequencies compiled in a manner recognized by accrediting bodies; or (iii) engage another testing laboratory to perform the calculation; (3) the testing laboratory may use its own statistical estimate if there is a question regarding which ethnic or racial group is appropriate. If available, the testing laboratory shall calculate the frequencies using statistics for any other ethnic or racial group requested.10.6

If, after recalculation using a different ethnic or racial group, genetic testing does not rebuttably identify a man as the father of a child under § 8-505 of this title, an individual who has been tested may be required to submit to additional genetic testing.10.7

A report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory. Such report is self-authenticating.10.8 Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony: (1) The names and photographs of the individuals whose specimens have been taken; (2) The names of the individuals who collected the specimens; (3) The places and dates the specimens were collected; (4) The names of the individuals who received the specimens in the testing laboratory; and (5) The dates the specimens were received. 10.9

A man is rebuttably identified as the father of a child if the results of the genetic testing disclose that: (1) The man has at least a 99 percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and (2) A combined paternity index of at least 100 to 1.10.10

A man identified as the father of the child may rebut the genetic testing results only by other genetic testing satisfying the requirements of this subchapter which: (1) excludes the man as a genetic father of the child; or (2) identifies another man as the possible father of the child.10.11

If more than 1 man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father. 10.12

A court or support-enforcement agency must order additional genetic testing upon the request of a party who contests the result of the original testing. If the previous genetic testing identified a man as the father of the child, the court or agency may not order additional testing unless the party provides advance payment for the testing.10.13

If a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing: (1) the parents of the man; (2) brothers and sisters of the man; (3) other children of the man and their mothers; and (4) other relatives of the man necessary to complete genetic testing.10.14 Issuance of such an order requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested.10.15

For good cause shown, the court may order genetic testing of a deceased individual.11 A court may order genetic testing of a brother of a man identified as 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.12

Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under pursuant to genetic testing as set forth above must be adjudicated the father of the child.10.13  Conversely, unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing as set forth above must be adjudicated not to be the father of the child.14

9. 13 Del. C., ch. 8.

10. 13 Del. C. § 8-502(a).

10.1. 13 Del. C. § 8-502(b).

10.2. 13 Del. C. § 8-502(c).

10.3. 13 Del. C. § 8-502(d).

10.4. 13 Del. C. § 8-503(a).

10.5. 13 Del. C. § 8-503(b).

10.6. 13 Del. C. § 8-503(c).

10.7. 13 Del. C. § 8-503(d).

10.8. 13 Del. C. § 8-504(a).

10.9. 13 Del. C. § 8-504(b).

10.10. 13 Del. C. § 8-505(a).

10.11. 13 Del. C. § 8-505(b).

10.12. 13 Del. C. § 8-505(c).

10.13. 13 Del. C. § 8-507.

10.14. 13 Del. C. § 8-508(a).

10.15. 13 Del. C. § 8-508(b).

11. 13 Del. C. § 8-509.

12. 13 Del. C. § 8-510.

13. 13 Del. C. §8-631(2).

14. 13 Del. C. §8-631(4).

© 2010  David L. Finger