Disestablishment of Paternity – Florida
It seems cruel, but unfortunately it happens. A couple is in love and they have a child together. There is no doubt in the mind of the father that he is the biological father of the child. As a result, he makes promises to his partner to support and provide for the child. Although the couple never marries, the father keeps his word by providing for the child’s needs and developing a parent-child relationship with the newborn. Even when the couple eventually separates, the father continues to send money to the mother for the child’s support and sees the child every chance he or she can get.
Then, the relationship between the mother and father turns sour. The mother tells the father that he can no longer see the child. As a result, the father decides to stop sending the mother money for the child. The situation continues to deteriorate until the mother eventually has a child support order entered against the father, forcing him to pay child support.
Sometime after the child support order is entered and the father is forced into paying monthly support payments, the mother informs the father that the child he has considered his from birth is not really his child. Not only must the “father” wrestle with a flood of emotions, but he is now obligated to pay support for a child that is no longer his. He cannot simply stop making child support payments, as this would cause the Florida Department of Revenue to take legal action against him and enforce the child support order. The “father” may feel that there is no way out of this situation; that he will be stuck paying child support for someone else’s child for many years to come.
Disestablishment of Paternity in Florida
Fortunately for the “father” in the above example, Florida law does provide a means by which he can challenge the child support order as well as the underlying conclusion that he is the legal father of the child. The means by which he does this is through a procedure known as disestablishment of paternity. If he is successful, the court will enter an order not only declaring that he is not the legal father of the child but that he does not have any obligation to continue paying child support.
Biological Father vs. Legal Father
Before discussing the disestablishment of paternity procedure, it is helpful to distinguish between the terms “biological father” and “legal father.” “Biological father” refers to the man that physically fathered the child. Establishing whether a particular man is the biological father of a particular child is typically accomplished through a genetic test. The “legal father” of a child, however, is that man who has the rights and responsibilities of a parent as to the child. In other words, the “legal father” is the person who has the right to see the child, establish a parental relationship with the child, and participate in decisions concerning the care and raising of the child. It is also the person who has an obligation to support and provide for the child’s needs. A man is determined to be the legal father of a child in one of four basic ways:
· Marriage, if he and the mother of the child were married at the time the child was born;
· Consent, if he and the mother agree that he is legally responsible for the child; or
· Court order, if a court or other agency determines that the man is the child’s legal father
. Paperwork, if a man signs onto the birth certificate at the time of birth. The paperwork may include signing an “affidavit of paternity.”
It is not necessarily true that the biological father of the child will be found to be the legal father as well. For instance, if Brad and Belle are unmarried and Belle becomes pregnant as a result of the relationship, Brad would obviously be the biological father of the child. But suppose that Belle marries Bill before the child is born. In such a case, Bill would be considered the legal father of the child, even if Brad is the biological father. Or consider that Bill and Belle marry after the child is born, and Bill successfully adopts Belle. Here again, although Brad is the biological father of the child, Bill would be considered the legal father.
It is a fact that Florida law “does not care” if the father is not the biological father
Beginning the Disestablishment Process
The process of disestablishing paternity begins when the legal father files a petition to disestablish paternity and/or terminate child support with the court. The legal father must file this document in the circuit court that has jurisdiction over the child support order or (if no child support order was entered by the court) in the circuit court where the mother or legal guardian lives. If the mother and child have relocated somewhere out of state, then the legal father can file the petition in the circuit court for the circuit in which he lives.
Because a disestablishment of paternity case has the potential to affect the mother and child as well, Florida law requires that the legal father give notice – that is, send a copy of the petition- to the mother as well as the Department of Revenue.
As part of the initial filing, the legal father must also include:
- An affidavit, or sworn statement, explaining that “newly discovered evidence” regarding paternity has come to his attention since the time that legal paternity was first established or a child support obligation first issued. The new evidence can be (but does not need to be) genetic testing results, or it can be statements or comments made by the mother or others. The key, though, is that this information must have been discovered after legal paternity was first established or a child support order was first issued. For instance, if Frankie told Fred one month ago that she knows the child’s biological father is Phil, and it has been six months since Fred was first ordered to pay child support, Frankie’s statements would constitute “newly discovered evidence.” But suppose that Frankie told Fred at the time she was pregnant that the child might not be his, and she reiterates this after a child support order is issued against him. In this case, it is unlikely that Frankie’s statements will constitute “newly discovered evidence.”
- The results of scientific tests which show that the legal father is probably not the biological father of the child. In other words, genetic testing should be done on the father and child and this testing should show that there is a probability that the legal father is not the biological father. The testing must be “generally accepted in the scientific community” – that is, it should be a standard genetic test that does not use any novel or unique methods for arriving at its results, and it should be performed by a qualified agency or laboratory.
But what if the mother of the child does not let the legal father have the child in order for a DNA sample to be taken from the child? In such a case the legal father must complete an additional sworn statement saying that he was not able to obtain a DNA sample from the child. The legal father can also request the court to order genetic testing.
- Child support payments must be current, or the legal father must have “substantially complied” with making child support payments on time. This fact must also be contained in a sworn statement. If there are past due payments owed, the affidavit must explain why these payments are past due.
Winning Your Disestablishment of Paternity Case
Florida law requires that the court grant the legal father’s petition for disestablishment of paternity – which terminates a finding that the man is the legal father of the child and is obligated to pay child support – when all of the following facts are found:
- There is newly discovered evidence relating to paternity. Again, this information must truly be “newly discovered” and cannot be information that was known to the legal father at the time he was declared to be the legal father or at the time the court established a child support award.
- The legal father complied with the requirement for conducting a scientific test. The court will be looking specifically to whether the genetic test required by the law was either conducted in accordance with the statute or that the legal father properly indicated that he could not have such a test performed because he did not have access to the minor child.
- Child support obligations are current. This means that the legal father is current on his child support obligation or has substantially complied with the child support obligation. If there is any delinquency, the court will need to find that such delinquency occurred due to “just cause.” For instance, being temporarily laid off or experiencing a serious medical crisis might be found to be “just cause” for falling behind on a child support obligation.
- The legal father has not adopted the child. The legal father cannot adopt the child and then claim that he is not the child’s legal father and not responsible for supporting the child.
- The child cannot have been conceived by artificial insemination while the legal father and mother were married. Notice that this is slightly – but significantly – different from other statutes regarding paternity. The general rule is that a man becomes the legal father of a child if he and the mother are married at the time the child is born. But in case of artificial insemination, the man remains the legal father of the child if the man and the mother are married at the time of conception.
- The legal father did not prevent the biological father from asserting his rights. If the legal father knew who the biological father was and prevented him from exercising any parental rights (such as preventing him from seeing his child, or from establishing a parental relationship with his child), then the court can deny a petition for disestablishment of paternity.
- The child was under 18 years old when the petition for disestablishment of paternity was filed.
Denying a Petition for Disestablishment
Even if the legal father properly filed a petition for disestablishment and followed all the necessary steps, the petition can be denied if the legal father:
· Married the mother of the child and represented to others that he was the father of the child;
· Made a sworn statement indicating he was the biological father;
· Allowed himself to be named as the biological father on the child’s birth certificate;
· Signed a voluntary acknowledgement of paternity; or
· Ignored or disregarded a notice from the court or a state agency asking him to submit to a genetic test.
Conclusion on Florida Disestablishment of Paternity Cases
If a petition for disestablishment is successful, the court’s order operates prospectively only. In other words, any child support payments already paid prior to the court’s order granting the petition for disestablishment will not be refunded or returned. The child support order will only be cancelled going forward. In addition, any rights or responsibilities the man had by virtue of being the legal father of the child will be terminated.
If you have been declared to be the legal father of a child or have been ordered to pay child support for a child that you have now learned is not your biological offspring, it may be encouraging to learn that there is an avenue available that would put a stop to child support payments and take away your designation as the child’s legal father. This does not mean that obtaining the result you desire is easy. An experienced family law attorney can ensure that you have completed all the necessary steps to have the court consider your petition and evaluate whether any behavior on your part may jeopardize your chance for success.
If you are the mother of a child and the legal father has filed a petition for disestablishment, we can help advise you of the legal ramifications should the petition be granted. Similarly, we help men wrongfully determined to be the father fight for their rights.
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