2006 New Mexico Statutes - Section 40-11-5 — Presumption of paternity.

40-11-5. Presumption of paternity.

A.     A man is presumed to be the natural father of a child if:   

(1)     he and the child's natural mother are or have been married to each other and the child is born during the marriage or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after a decree of separation is entered by a court;   

(2)     before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:   

(a)     if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or   

(b)     if the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;   

(3)     after the child's birth, he and the child's natural mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:   

(a)     he has acknowledged his paternity of the child in writing filed with the vital statistics bureau of the public health division of the department of health;   

(b)     with his consent, he is named as the child's father on the child's birth certificate; or   

(c)     he is obligated to support the child under a written voluntary promise or by court order;   

(4)     while the child is under the age of majority, he openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child; or   

(5)     he acknowledges his paternity of the child pursuant to Section 24-14-13 NMSA 1978 or in writing filed with the vital statistics bureau of the public health division of the department of health, which shall promptly inform the mother of the filing of the acknowledgment, and, within a reasonable time after being informed of the filing, she does not dispute the acknowledgment. In order to enforce the rights of custody or visitation, a man presumed to be the father as a result of filing a written acknowledgment shall seek an appropriate judicial order in an action filed for that purpose. A signed voluntary acknowledgment of paternity is considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of:   

(a)     sixty days from the date of signing; or   

(b)     the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, to which the signatory is a party. After sixty days from the date of signing, the acknowledgment may be challenged in court only on the grounds of fraud, duress or material mistake of fact, with the burden of proof upon the challenger, although legal responsibilities arising from signing the acknowledgment may not be suspended during the challenge, except upon a showing of good cause. Judicial or administrative proceedings are not required to ratify an unchallenged acknowledgment.   

B.     If two or more men are presumed under this section to be the child's father, an acknowledgment by one of them may be effective only with the written consent of the other or pursuant to Subsection C of this section.   

C.     A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more men are presumed under this section to be the father of the same child, paternity shall be established as provided in the Uniform Parentage Act [ 40-11-1 NMSA 1978]. If the presumption has been rebutted with respect to one man, paternity of the child by another man may be determined in the same action if he has been made a party.   

D.     A man is presumed to be the natural father of a child if, pursuant to blood or genetic tests properly performed by a qualified person and evaluated by an expert, including deoxyribonucleic acid (DNA) probe technique tests under the Uniform Parentage Act, the probability of his being the father is ninety-nine percent or higher.   

E.     The voluntary acknowledgment of paternity must be recognized as a basis for seeking a support order without requiring any further proceedings to establish paternity.   

F.     Full faith and credit must be given to determination of paternity made by other states, including acknowledgments of paternity.