Paternity Flashcards
If Q asks about challenging paternity, what should answer begin with?
Until a court orders otherwise, M is entitled to primary care and custody of child born out of wedlock.
H and W are married. Have baby. H says it’s not his. What’s the evidentiary standard?
Clear and convincing.
H/W have child. Get divorced, so there’s FJDOM. Someone wants to challenge that patenrity adjudication. Can they?
Yes, under 12.540. (But can third party?)
M/F pregnant. Have child. M/F get married. Is child legitimate?
Yes, upon marriage.
M/F are married. Get pregnant. Divorce. Baby born after divorce. Is child legitimate?
Yes, but presumption can be overcome.
H/W married. Get a divorce. H says kid isn’t born of marriage. Will he have to pay child support?
Potentially.
M/F have child. There’s a contested case and F is deemed to be father of kid. He’s not, though. Can child come challenge paternity?
If FJ determines paternity, no.
Can you bring paternity action under UIFSA?
Yes, but can’t determine custody.
M/F have child in GA. GA determines F is father. Everyone moves to FL. Someone wants to challenge paternity in FL. What’s next?
Dismiss - res judicata. BUT. FL could do disestablishment of paternity.
F signs voluntary acknowledgment of paternity. Does that conclusively determine paternity?
Initially, rebuttable presumption of paternity.
After 60 days with no challenge, it’s consclusive.
F signs voluntary acknowledgment of paternity. After 90 days, he wants to rescind. Can he?
Can only challenge for fraud, duress, material mistake of fact.
Kid born to W while married to H. H/W stipulate that it’s not H’s and no duty to support. Is child legitimate? Does H have duty after to support?
Yes. H has no duty to support child?.
H/W married and have kid. Buzz wants to challenge paternity. What’s the evidentiary standard to overcome presumption of legitmacy?
Clear and convincing evidence.
H/W adopt child. Birth father dies. Can child inherit from birth father?
No, all ties severed after adoption.
Unless will, i suppose
M/F have baby. Not married. Will F’s name go on birth certificate?
Only if M/F both sign consenting affidavit.
M/F not married. Sign acknowledgment of paternity in hospital. Does this establish paternity?
Yes.
M/F not married. Sign acknowledgment of paternity in hospital. Can this be challenged?
Paternity can be disestablished only for fraud, duress, material mistake of fact.
Buzz wants DOR to establish paternity and child support over his kid. Can they?
No, buzz isn’t receiving govt services
Where is venue for paternity actions?
County where either M or F live.
How do you get long-arm J over possible father who isn’t in FL?
Allege he had sex in FL which may have conceived this kid
H/W have kid. FJDOM entered. Buzz thinks kid is his. Can Buzz file paternity action under 742?
No.
F wants to question paternity of child born during marriage. Wants DNA test. What does court look at?
Privette test:
1) complaint factually accurate
2) compalint brought in good faith and likely to be supported by evidence,
3) if DNA makes illigeitmate, that’s in child’s BIC.
What is Privette test used for?
TO determine whether to order DNA testing of a child born during marriage
What are the steps of the PRivette test?
Complaint factually accurate
Brought in good faith
Supported by reliable evidence
BIC if turns out not legit.
H/W married. Buzz thinks it’s his kid. Files for DNA testing. Is H a party/
Both H/W/Buzz must be parties.
Buzz wants to get DNA testing to prove father. Files motion for DNA testing. What must court do?
Privette test and GAL for child for the BIC part
Court permits DNA test. What % must be reached and then what?
95% or more creates rebuttable presumption of paternity.
H/W have child. Buzz thinks he’s the father. What doc does he file?
Petition to establish paternity.
Are fees available in paternity cases?
yes
What is standard on appeal for paternity cases?
Abuse of discretion
H/W married. H says not my kid, wants to disestablish paternity. Does he have to prove fraud?
No.
Where do you file petition to disestablish paternity?
In county who has jurisdiction over child support obligation.
What is required in a petition to disestablish patenrity?
Affidavit of newly discovered evidence
Results of DNA testing OR affidavit of lack of access for sex
Affidavit that H is current on CS or good cause for being delinquent on CS
F signs paternity acknowledgment. Wants to disestablish paternity later. What factors must he prove?
Newly discovered evidence
Proper DNA test
Current CS
No adoption of child (cuz then you admitted)
Child not conceived by artificial insemination during marraige
Man filing didn’t prevent husband from asserting parental rights
Child under age 18 when petition filed.
F wants to disestablish paternity. When will court deny?
ALLL THIS IS AFTER HE LEARNED NOT FATHER:
Married mother and assumed parental duties and CS
Signed paternity acknowledgment/statement
Consented to being on birth certificate
Promised in writing to support
Ignored request for DNA testing
Buzz has paternity disestablished. Can he get child support back?
No.
Buzz has paternity disestablished. Can he get child support arrearage back?
No
DNA testing ordered. Someone doesn’t show up. What happens?
Court issues order granting relief against the person who bailed.
H/W married. Buzz says “that’s my kid.” H/W both object. What happens?
Buzz can’t intervene unless “common sense and reason are outraged”
Buzz wants to order DNA test to establish paternity of H/W’s kid. Can H accept service for W?
Generally no, since he’s a party.
What must all paternity orders include?
Child support.
When can the ppresumption of legitmacy be overcome?
a clear and compelling reason primarily based on BIC
Can paternity be established as part of DV case?
No.
Does filing a 12.540 motion disestablish patenity?
Not necessarily.
What’s the statute of limitations on paternity cases?
Child’s majority PLUS 4 years.
You have DNA test that says you’re the dad. How long do you have to act?
90 days or you’re screwed.
Where is venue for paternity?
Where P or D reside
What is required in acnowledgment of paternity document?
Under oath
2 witnesses
Voluntary
Paternity established in NY. FL treat same as NY?
YEs
H/W use in vitro to have child. H doesn’t consent. Child born. Is it legit?
No, both must consent to use of in vitro.
What is GAL role in Privette test?
Both whether to order DNA test, and how child’s best interests are affected.
What is gestational surrogacy?
Use of surrogate, like for gays
How do you refer to Tyson/Patrick in the surrogacy process?
Commissioning couple
When can you use a gestational surrogate?
Mom can’t take to term
Health risk to mom or baby
What must be in gestational surrogate contract?
Surrogate has all consents
Agrees to reasonable prenatal care/treatement
Relinquishes all rights on birth
Commissioning keeps kid regardless of impairment
Surrogate keeps kid if neither parent genetically related to kid
