43-1411. Paternity; action to establish; venue; limitation; summons; person claiming to be biological father; action to establish; genetic testing.
(1) A civil proceeding to establish the paternity of a child may be instituted, in the court of the district where the child is domiciled or found or, for cases under the Uniform Interstate Family Support Act, where the alleged father is domiciled, by (a) the mother or the alleged father of such child, either during pregnancy or within four years after the child's birth, unless (i) a valid consent or relinquishment has been made pursuant to sections 43-104.08 to 43-104.25 or section 43-105 for purposes of adoption or (ii) a county court or separate juvenile court has jurisdiction over the custody of the child or jurisdiction over an adoption matter with respect to such child pursuant to sections 43-101 to 43-116 or (b) the guardian or next friend of such child or the state, either during pregnancy or within eighteen years after the child's birth. Summons shall issue and be served as in other civil proceedings, except that such summons may be directed to the sheriff of any county in the state and may be served in any county.
(2) Notwithstanding any other provision of law, a person claiming to be the biological father of a child over which the juvenile court already has jurisdiction may file a complaint to intervene in such juvenile proceeding to institute an action to establish the paternity of the child. The complaint to intervene shall be accompanied by an affidavit under oath that the affiant believes he is the biological father of the juvenile. No filing fee shall be charged for filing the complaint and affidavit. Upon filing of the complaint and affidavit, the juvenile court shall enter an order pursuant to section 43-1414 to require genetic testing and to require the juvenile to be made available for genetic testing. The costs of genetic testing shall be paid by the intervenor, the county, or the state at the discretion of the juvenile court. This subsection does not authorize intervention by a person whose parental rights to such child have been terminated by the order of any court of competent jurisdiction.
Source
Cross References
Annotations
1. Constitutionality
2. Next friend
3. Miscellaneous
1. Constitutionality
This section does not violate the Equal Protection Clause because a mother can bring paternity actions on behalf of the child for up to 18 years, while fathers have only 4 years to bring paternity actions; this section treats mothers and putative fathers identically by imposing a 4-year limitations period on paternity actions brought by parents asserting their own rights. Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).
Actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth. Moreover, this preservation of a minor child's right to establish paternity does not violate either the U.S. or Nebraska constitutions. State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994).
2. Next friend
In the context of a paternity action, "next friend" is defined as "one who, in the absence of a guardian, acts for the benefit of an infant". Where a minor child lived with his mother and natural guardian, the court determined there was no legal basis, reason, or cause for a "next friend" to institute a paternity action on the minor child's behalf. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000).
A next friend is one who, in the absence of a guardian, acts for the benefit of an infant. State on behalf of B.A.T. v. S.K.D., 246 Neb. 616, 522 N.W.2d 393 (1994).
3. Miscellaneous
The definition of "child" in this section means a child under the age of 18 years born out of wedlock. State on behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020).
The State may not bring an action under this section to establish the paternity of a child born in wedlock. State on behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020).
An emotional bond with one's biological father is not the type of relationship contemplated by this section, nor is it the type of support with which the State has a reasonable interest. Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).
Father of child born out of wedlock may bring suit to determine paternity. White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987).
This section contains no limitation on a cause of action brought on behalf of a child to establish paternity and secure its rights. Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984).
Determination of paternity not barred by statute of limitations in action to modify divorce decree. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978).
Filiation proceeding is considered as civil in character. Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452 (1956).
A guardian, next friend of the child, or the State is authorized to bring a paternity action on behalf of a child under subsection (2) of this section within 18 years after the child's birth. This section does not extend the statute of limitations for anyone other than the minor child involved. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).
In an action filed by the State under this section, the minor child is the real party in interest, and the State is authorized by statute to bring the action on the child's behalf. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).
Pursuant to this section, the State, in its parens patriae role, may bring a paternity action on behalf of a minor child for future support. The State's right to sue under this section is not conditioned upon the payment of public assistance benefits for the minor child. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).
This section applies in proceedings that solely seek to establish the paternity of a child or parental support for a child, but not when custody and/or visitation of a child is at issue. Wolter v. Fortuna, 27 Neb. App. 166, 928 N.W.2d 416 (2019).
A biological parent is barred from bringing a paternity action as his or her child's next friend under subdivision (2) of this section when the parent fails to show that the child is without a guardian because the child is living with a biological parent. Tyler F. v. Sara P., 24 Neb. App. 370, 888 N.W.2d 537 (2016).
A parent's right to initiate paternity actions under this section is barred after 4 years, but actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth. Tyler F. v. Sara P., 24 Neb. App. 370, 888 N.W.2d 537 (2016).