Recent Case: State of Missouri (FSD) v. [Family Court Commissioner] Missouri Court of Appeals, Western District – WD75408

State ex rel. State of Missouri, Department of Social Services, Family Support Division ("Relator") sought a permanent writ of prohibition to prevent enforcement of an order issued by “Family Court Judge” directing the State to advance the cost of genetic paternity testing in an action filed by the alleged father seeking to set aside a judgment of paternity pursuant to section 210.854. The Court issued a writ of prohibition.

Section 210.854 was enacted in 2009, and creates a right to seek to set aside an otherwise final, non-appealable judgment determining paternity and to unwind the financial and criminal ramifications of non-support resulting from the judgment. Section 210.854.3 provides that genetic paternity testing costs required to contest a final judgment of paternity shall be paid by the petitioner, in this case, the alleged father. The Judge entered an order requiring the State to advance the cost of genetic paternity testing. But by the plain language of the section 210.854.3, the Judge did not have the authority or the discretion to impose the obligation to pay for genetic paternity testing on the State, even temporarily.  The Judge argued that the alleged father is indigent and could not be required to pay for genetic paternity testing pursuant to section 514.040.1. However, It is immaterial whether the alleged father had been permitted to pursue this action in forma pauperis,(as a poor person) or whether the cost of genetic paternity testing is a fee, tax, or charge within the scope of section 510.040.1, as there is no authority in any event to shift the alleged father’s statutory obligation to pay for section 210.854 genetic paternity testing to the State.  Absent statutory authority, costs cannot be recovered in state courts from the state of Missouri or its agencies or officials. The State can be assessed the obligation to pay the cost of genetic paternity testing pursuant to the authority of section 210.834.4, a provision relating to the initial determination of paternity. However, that provision has no application to an application to set aside paternity under section 210.854.