PATERNITY

Question 1

What was the biggest legislative change to paternity in 2023?

Answer 1

Mothers are no longer the only natural guardians of minor children born out of wedlock.

Question 2

Who is a natural guardian pursuant to amended 744.301?

Answer 2

The mother of a child born out of wedlock

AND

A father who has established paternity under s. 742.011 or s. 742.10 are the natural guardians of the child and are entitled and subject to the rights and responsibilities of parents.

If a father has not established paternity under s. 742.011 or s. 742.10(1), the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

Question 3

How can a father establish paternity for purposes of being considered a natural guardian in accordance with 744.301?

Answer 3

A FATHER WHO HAS ESTABLISHED PATERNITY UNDER §742.011 OR §742.10(1)

ARE THE NATURAL GUARDIANS OF THE CHILD ENTITLED AND SUBJECT TO THE RIGHTS AND RESPONSIBILITIES OF PARENTS – AS OF JULY 2023

Question 4

What are the two ways a father can establish paternity per statute in order to be considered a natural guardian of a child born out of wedlock?

Answer 4

(1) 742.011 - Dad establish paternity in a proceedings for determination of paternity, rights, and responsibilities OR

(2) §742.10(1) Paternity is established under Chapter 742 if one of the following was completed:

(i.) If the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers’ compensation or similar compensation programs;
(ii.) If an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of court;
(iii.) If an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in Fla. Stat. § 382.013 or Fla. Stat. § 382.016 is executed by both parties;

1. Both parents must provide their social security numbers on any acknowledgement of paternity, consent affidavit, or stipulation of paternity.
2. After 60 days from the date the acknowledgement was signed or the date of an administrative or judicial proceeding related to the child (including a proceeding to establish a support order) in which the signatory is a party, whichever is earlier, if not rescinded, a signed acknowledgement of paternity constitutes an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the challenger. Legal responsibilities may not be suspended during the challenge, except upon a finding of good cause by the court.
   OR If paternity is adjudicated by the Department of
   Revenue as provided in Fla. Stat. § 409.256.

Question 5

Even if paternity is established under 744.301, what is NOT established for a child born out of wedlock?

Answer 5

While paternity may be established prior to the birth of the child, a Parenting Plan including parental responsibility and time-sharing, and child support are determined after the birth of the child

Question 6

When does a putative father have standing?

Answer 6

Once paternity is adjudicated

Question 7

Who is a putative father

Answer 7

Putative Father means an individual who is or may be the biological father of a child whose paternity has not been established and whose mother was unmarried when the child was conceived and born.

Question 8

If a putative father i.e. father who has not yet established paternity, what does that mean?

Answer 8

1. No pick-up orders to putative fathers.

2.No injunctions to prevent removal to putative fathers.

3. No custody or visitation can be ordered in any ex parte proceedings brought by the putative father, including domestic violence.

Question 9

What is the purpose of a pick up order

Answer 9

A pick-up order permits a court to obtain the physical presence within the jurisdiction so that it can adjudicate issues of custody or to enforce an already granted right of custody. It is NOT a vehicle by which an initial determination of custody is made.)

Question 10

What presumption is created by a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury?

Answer 10

It creates a rebuttable presumption of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

Question 11

What must be included on an acknowledgment of paternity, consent affidavit or stipulation of paternity

Answer 11

Both parent’s social security number

Question 12

What does a voluntary acknowledgment do

Answer 12

creates a rebuttable presumption of paternity and no judicial or administrative proceeding is required to affirm or ratify the acknowledgment

Question 13

How long after entering a voluntary acknowledgment does a party have to rescind

Answer 13

60 days. Once 60 days passes, it shall constitute an establishment of paternity and may be challenged only for fraud, duress, or material mistake of fact with the burden of proof upon the challenger

Question 14

If Mother is the sole custodian of a child born out of wedlock bc no father ever establish paternity per 742.011 or 742.10 what rights does she have

Answer 14

a. She may the leave the State before a paternity order is entered; and

b. She cannot be ordered to return until a paternity order is entered.

c. Without an acknowledgement or stipulation of paternity as detailed above, until there is an adjudication of paternity, putative father has NO STANDING. Since the putative father has no standing:
i. No pick-up orders to putative fathers. See Fla. Stat. 744.301 (1); Williams v. Primerano, 973 So.2d 645 (Fla. 4th DCA 2008) (A pick-up order permits a court to obtain the physical presence within the jurisdiction so that it can adjudicate issues of custody or to enforce an already granted right of custody. It is NOT a vehicle by which an initial determination of custody is made.)
ii. No injunctions to prevent removal to putative fathers.
iii. No custody or visitation can be ordered in any ex parte proceedings brought by the putative father, including domestic violence.
iv. Paternity should not be established in a Domestic Violence proceeding; a separate action is required.

Question 15

Does establishment of paternity give father rights to custody?

Answer 15

No - I DONT KNOW NOW UNDER THE NEW STATUTE….. ASK JAMIE / ANDREA

Question 16

Before blood tests can be ordered in cases in which a presumption of legitimacy is raised by a putative father, what is the trial court required to do

Answer 16

Hear argument from the parties, including the legal father, if he wishes to appear, and a guardian ad litem appointed to represent the child; Department of Health and Rehabilitative Services (HRS) also may be an appropriate party in cases involving the expenditure of public monies on behalf of a child

Question 17

Who bears the burden in a “Privette” Hearing for a blood test

Answer 17

The movant has the burden of proving by clear and convincing evidence the requisite factors. Even if the legal father is proven not to be the child’s biological father, there still must be a clear and compelling reason why it is in the child’s best interests to overcome the presumption of legitimacy

Question 18

What must court consider in a privette hearing before granting a blood test

Answer 18

1. determine that the complaint is apparently accurate factually, is brought in good faith,
   2.is likely to be supported by reliable evidence,
   3.to find that the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy;

The one seeking the test bears the burden of proving these elements by clear and convincing evidence

Question 19

What is proper venue for paternity action

Answer 19

The proceedings shall be in the circuit court of the county where the plaintiff resides or of the county where the defendant resides

Question 20

Who has standing to bring a paternity action

Answer 20

• Any woman who is pregnant or has a child
• Any man who has reason to believe that he is the father of a child, or
• Any child

may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.

Question 21

What must a petition for paternity include with its service

Answer 21

In order to preserve the right to notice and consent to the adoption of the child, an unmarried biological father must, as the “registrant,” file a notarized claim of paternity form with the Florida Putative Father Registry maintained by the Office of Vital Statistics of the Department of Health which includes confirmation of his willingness and intent to support the child for whom paternity is claimed in accordance with state law. The claim of paternity may be filed at any time before the child’s birth, but a claim of paternity may not be filed after the date a petition is filed for termination of parental rights.

Question 22

What can a court do to a putative father to keep him in the jurisdiction and what procedures must be followed

Answer 22

Upon the filing of a verified petition for paternity, the court MAY issue a write of ne exeat against the respondent and impose a bond

Question 23

What is the caveat in paternity actions concerning evidentiary standards?

Answer 23

Bills for pregnancy, childbirth, and scientific testing are admissible as evidence without requiring third-party foundation testimony, and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.

Question 24

How are pregnancy bills, scientific testing and hospital bills paid?

Answer 24

The court shall order either or both parents owing a duty of support to the child to pay support pursuant to s. 61.30.

Question 25

What is the standard to modify, vacate or set aside a temporary support order before entry of a fj?

Answer 25

Good cause - substantial change in circumstances is not necessary

Question 26

If court modifies a temporary support order, may it be modified retroactively?

Answer 26

To the date of the initial entry of the temp order

The date of filing the initial petition for DOM, petition for support, petition for paternity or supp pet for mod.

Question 27

Beginning July 1, 1997, each party to any paternity or child support proceeding must file with the tribunal, as defined in chapter 88 and State Case Registry as defined in chapter 61 what?

Answer 27

Upon entry of an order, and update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver license number, and name, address, and telephone number of employer.

Question 28

What happened as of July 1, 1998

Answer 28

Each party to any paternity or child support proceeding in a non-Title IV-D case have to provide to the court their location, identify, SS, address, phone number, DL, name and address of employer.

Question 29

Beginning July 1, 1997, in any subsequent Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party upon

Answer 29

Delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry

Question 30

Beginning October 1, 1998, in any subsequent non-Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party upon

Answer 30

Delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry

Question 31

Can attorney’s fees and costs be recovered in Title IV-D cases

Answer 31

In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1)

Question 32

Can DOR be subjected to 57.105 fees

Answer 32

Yep.

Question 33

Does the court retain jurisdiction to enter other orders in the future as changing circumstances may require?

Answer 33

Yes - 742.06

Question 34

What are the effects of adoptions with respect to a father’s obligation for support

Answer 34

742.07
Upon the adoption of a child, for whom support has been ordered, by some person other than the father, the liability of the father for the support of the child shall be terminated.

Question 35

When can the names of parties in a paternity action be published

Answer 35

Only when its be service of process by publication

Question 36

What happens if someone publishes the name of party to a paternity action when it is not for purposes of publication by service

Answer 36

A person who violates this section commits a misdemeanor of the first degree

Question 37

If a paternity action is pending and the parties subsequently marry, what happens

Answer 37

Child is deemed a child born of the marriage, action is dismissed, and the proceeding shall be sealed against public inspection in the interest of the child.

Question 38

What must the department do once a person executed an affidavit or voluntary acknowledgment of paternity

Answer 38

Provide information to explain the alternatives to, the legal consequences of, and the rights, including, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from acknowledging paternity.

Question 39

After 60 days goes by after execution of a signed voluntary acknowledgment of paternity, can a party challenge paternity in court

Answer 39

Only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment may not be suspended during the challenge, except upon a finding of good cause by the court.

Question 40

What are the effects of a foreign judgment of paternity

Answer 40

742.105
Final order of paternity entered in a foreign jurisdiction, whether resulting from a voluntary acknowledgment or an administrative or judicial process, or an affidavit acknowledging paternity signed in any other state according to its procedures, shall be given the same legal effect as if such final order was entered or affidavit was signed pursuant to this chapter. In any proceeding in this state, a certified copy of the final order of paternity from a foreign jurisdiction shall be conclusive evidence of paternity.

Question 41

Whenever the information provided by a mother who was impregnated while under 16 years of age indicates that the alleged father of the child was 21 years of age or older at the time of conception of the child, what must happen

Answer 41

he Department of Revenue or the Department of Children and Families shall advise the applicant or recipient of public assistance that she is required to cooperate with law enforcement officials in the prosecution of the alleged father since its the legislatures intention to prosecute

Question 42

What is the presumption of a child born within wedlock via artificial or in vitro insemination

Answer 42

742.11
Irrebuttable presumption that it is the child of H & W provided that H & W CONSENTED to same

Question 43

What is the presumption of a child born thin wedlock who has been conceived by means of donated eggs or preembryos

Answer 43

Irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos.

Question 44

If court orders DNA testing, what happens after

Answer 44

Test results will be filed with the court 10 days prior to any hearing and if no objection is filed, the test will be admitted into evidence without the need for predicate to be laid or 3rd party foundation testimony

Question 45

What happens if a DNA test comes back as 95% or higher

Answer 45

Creates a rebuttable presumption that the alleged father is the biological father of the child.

Question 46

What can court do if party fails to object to a DNA test comes back 95% or higher

Answer 46

The court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.

Question 47

If the test results or the expert analysis of the inherited characteristics is disputed, what can the court do

Answer 47

Upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.

Question 48

What is assisted reproductive technology

Answer 48

Procreative procedures which involve the LABROTORY handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.

Question 49

what is the definition of a commissioning couple

Answer 49

intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.

Question 50

what can a commissioning couple do after birth of child via surrogacy

Answer 50

within 3 days after birth, can petition court of competent jur to expedite affirmation of parental status - it can be immediately. Court shall set time and place and send out notice which shall be served.

Question 51

who shall receive notice of a petition to affirm parental status after surrogate gives birth

Answer 51

1. commissioning couple
2. gestational surrogate
3. treating physician
4. any party claiming paternity

Question 52

What must court determine at a hearing on petition to affirm parental status after surrogate gives birth

Answer 52

1. Determine that a binding gestational surrogacy contract has been executed;
2. At least 1 parent of commissioning couple is a genetic parent
3. then court shall enter orders stating commissioning couple are the legal parents

Question 53

What happens to eggs, sperm or preembryos in event of death divorce or other unforseen circumstance

Answer 53

(1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.
(2) Absent a written agreement, decision making authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.
(3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.

Question 54

who can file a petition for disestablish paternity

Answer 54

a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.

Question 55

What is the first step to disestablish paternity

Answer 55

(1) the male must file a petition in the circuit court having jurisdiction over the child support obligation.

(2) The petition must be served on the mother or other legal guardian or custodian of the child. If the mother or legal guardian or custodian no longer resides in the state, the petition may be filed in the circuit court in the county where the petitioner resides.

Question 56

Where must a petition to disestablish paternity be filed

Answer 56

If the child support obligation was determined administratively and has not been ratified by a court, then the petition must be filed in the circuit court where the mother or legal guardian or custodian resides.

Question 57

What must a petition to disestablish paternity include

Answer 57

1. Affidavit that newly discovered evidence of paternity of child has come to petitioner’s knowledge since establishment of child support obligation or initial paternity determination
2. e results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.
3. An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

Question 58

What must court find in granting a petition to disestablish paternity

Answer 58

(a) Newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.

(b) The scientific test required in paragraph (1)(b) was properly conducted.

(c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

(d) The male ordered to pay child support has not adopted the child.

(e) The child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock.

(f) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child.

(g) The child was younger than 18 years of age when the petition was filed.

Question 59

When will a court NOT grant the petition to disestablish paternity

Answer 59

If the male engaged in the following conduct AFTER learning he was not the father:
(a) Married the mother of the child while known as the reputed father in accordance with s. 742.091 and voluntarily assumed the parental obligation and duty to pay child support;

(b) Acknowledged his paternity of the child in a sworn statement;

(c) Consented to be named as the child’s biological father on the child’s birth certificate;

(d) Voluntarily promised in writing to support the child and was required to support the child based on that promise;

(e) Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or

(f) Signed a voluntary acknowledgment of paternity as provided in s. 742.10(4).

Question 60

What happens if the court orders in a petition to disestablish paternity the father or the child to submit to testing and testing doesn’t happen

Answer 60

Court and rule for or against whoever failed to test unless the party shows good cause for failing to submit to testing, such failure shall not be considered willful

Question 61

What shall clerk do if court grants petition to disestablish paternity

Answer 61

The clerk of the court shall, within 30 days following final disposition, forward to the Office of Vital Statistics of the Department of Health a certified copy of the court order or a report of the proceedings upon a form to be furnished by the department, together with sufficient information to identify the original birth certificate and to enable the department to prepare a new birth certificate.

Question 62

Can the court change a child’s surname if it grants petition to disestablish paternity

Answer 62

The mother or legal guardian or custodian requests that the court change the child’s surname, the court may change the child’s surname. If the child is a minor, the court shall consider whether it is in the child’s best interests to grant the request to change the child’s surname.

Question 63

Who’s name goes on child’s birth certificate if mother is married at time of birth

Answer 63

Her spouse

Question 64

Who’s name can mom put on birth certificate if she is not married at time of birth

Answer 64

Father’s name cannot be put on birth certificate unless he executed an affidavit signed by mom and dad.

Question 65

A gestational surrogacy contract shall not be binding and unenforceable unless

Answer 65

1. surrogate is 18 or older
2. commissioning couple is married
3. commissioning couple both over 18

Question 66

When can a commissioning couple contract for gestational surrogate?

Answer 66

ONLY WHEN within reasonable medical certainty determined by DR that
1. commissioning mother cannot physically gestate a pregnancy to term
2. gestation will cause a risk to physical health of commissioning mother
3. gestation will cause a risk to health of fetus

Question 67

What provisions must a surrogacy contract include

Answer 67

1. commissioning couple agrees that gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of pregnancy
2. surrogate agrees to submit to reasonable medical evaluation and treatment and adhere to reasonable medical instruction about prenatal health
3. gestational surrogate agrees to relinquish parental rights upon birth
4. commissioning couple agrees to accept custody and assume full parental rights immediately upon birth regardless of any impairment of Child
5. surrogate agrees to assume parental rights and responsibilities for child born to her if it is determined that neither member of commissioning couple is genetic parent

Question 68

Can commissioning couple pay surrogate

Answer 68

Only reasonable living, legal, medical, psychological, and psychiatric expenses that are directly related to prenatal, intraparta and postpartal periods.

Question 69

What shall clerk do after court enters and order granting affirmation of parental rights to commissioning couple

Answer 69

Within 30 days clerk will send certified statement to dept of health to issue a new birth certificate with commissioning couple as parents and require dept to deal the original birth certificate

Question 70

What court has jurisdiction over a disestablishment of paternity

Answer 70

The circuit court with jur over child support obligation - must serve petition on mother or legal guardian of kid

Question 71

What court has jur if child support was determined administratively and has not been ratified by court

Answer 71

In the circuit court where mother or legal guardian lives. Petition has to be served on DOR and mother / legal guardian

Question 72

Can the court change a child’s surname if the birth certificate is corrected to remove a father after disestablishment of paternity

Answer 72

If Mom of legal guardian request it the court can but it must consider the child’s best interest

Question 73

What happens with fees if the court denies the petition to disestablish paternity

Answer 73

The court SHALL access the costs and attorney’s fees against the Petitioner (742.18)

Question 74

If a mother is married at time of child’s birth and a putative father is seeking to establish paternity, what must the court determine before ordering a blood test

Answer 74

PRIVETTE HEARING - must hold hearing and allow parties, a legal father (if he wants to be heard), GAL and Dept of Health and Rehabilitative Services if they are involved, to provide argument as to blood test.
(a) to determine that the complaint is apparently accurate factually, is brought in good faith, and is likely to be supported by reliable evidence, and

(b) to find that the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy.

The one seeking the test bears the burden of proving these elements by clear and convincing evidence.

Question 75

What is the burden of proof needed to overcome the presumption of legitimacy?

Answer 75

When there is a clear and compelling reason based primarily on child’s best interest

Question 76

What rights do legitimate children have

Answer 76

1. Inheritance rights
2. Wrongful death actions
3. Workers compensation
4. Social security

Question 77

When does a biological father have standing to rebut the presumption of legitimacy

Answer 77

Simmonds v. Perkins “when father has manifested a substantial and continuing concern for the welfare of the child and if the court finds a compelling reason based primarily on the child’s best interest

Question 78

Can a party seek a jury trial in a paternity case

Answer 78

Yes - it is error to deny the right to trial by jury in a paternity case but that jury does not apply to a privette hearing

Question 79

If custody as at issue, what jurisdictional requirements must be met

Answer 79

UCCJEA

Question 80

If custody is at issue, and long arm jur is plead in paternity, what must be included in petition

Answer 80

it MUST contain allegation that P & R engaged in sex in FL at relevant period for conception

Question 81

Can a court order a DNA test in a paternity action if putative father signed an affidavit of acknowledge of paternity and 60 days has lapsed without rescission?

Answer 81

Father has to challenged the affidavit based on fraud, duress, or material mistake of fact and he has the burden of proof

Question 82

Do TS & parental responsibility have to be addressed in a FJ of paternity?

Answer 82

Nope - just child support.

Question 83

Can custody or TS be sought in a DOR action

Answer 83

No