Paternity

Question 1

Is a parent/child relationship established by a decree in another state recognized in FL?

Answer 1

Yes. Unless such status or the rights flowing therefrom are not contemplated by or repugnant to the laws of policy of the state of Florida upon the subject. Gragg-Rivera v. Gragg, 2024

Question 2

Can a Father’s rights be removed solely on biology?

Answer 2

No.

Question 3

Pursuant to Section 742.10, when is there a rebuttable presumption of paternity?

Answer 3

When an affidavit acknowledging paternity is executed by both parties, witnessed and signed under penalty of perjury, which has not been rescinded within 60 days.

Question 4

Once there is a rebuttable presumption of paternity based on the affidavit acknowledging the paternity that has not been rescinded within 60 days, how can the presumption be rebutted?

Answer 4

The rebuttable presumption of paternity can be challenged based on duress, fraud or material mistake of fact.

Question 5

Who has the burden of proof to disestablish paternity?

Answer 5

The challenging party.

Question 6

What was the biggest legislative change to paternity in 2023?

Answer 6

Mothers are no longer the only natural guardians of minor children born out of wedlock. Instead, the Mother of a child born out of wedlock AND a father who has established paternity until 742.011 or 742.10(1) are the natural guardians of the child entitled and subject to the rights and responsibilities of parents.

Question 7

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

Answer 7

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 8

Can custody or TS be sought in a DOR action?

Answer 8

Nope.

Question 9

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

Answer 9

Nope - just child support.

Question 10

How is paternity established under 742.10 (1)?

Answer 10

1) 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 other similar compensation programs; 2) if an affidavit acknowledging paternity or a stipulation is executed by both parties and filed with the court;
3) 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 382.013 or 382.016 is executed by both parties and both parties ss numbers are on the acknowledgement and it is not rescinded in 60 days; or
4) if paternity is adjudicated by the DOR as provided in 409.256.

Question 11

If the mother is the sole custodian of a child born out of wedlock, can she leave the state with the child before a paternity order is entered?

Answer 11

Yes

Question 12

If the mother is the sole custodian of a child born out of wedlock, can she be ordered to return to Florida?

Answer 12

No.

Question 13

Can a putative father (without any adjudication of paternity) obtain a pick up order?

Answer 13

No.

Question 14

Can paternity be established in a DV proceeding?

Answer 14

No.

Question 15

Who can bring forth a paternity action under 742.011 when paternity has not been established by law or otherwise?

Answer 15

1) Any woman who is pregnant or has a child; 2) any man who has reason to believe that he is the father of a child; or (3) any child?

Question 16

Who can request a determination of parental responsibility and child support and for the creation o9f a parenting plan and timesharing schedule?

Answer 16

A parent.

Question 17

What is the appropriate venue for a paternity action?

Answer 17

County where the plaintiff resides or where the defendant resides.

Question 18

Can the court award attorney’s fees in a paternity action?

Answer 18

Yes, pursuant to 742.045

Question 19

Is expert testimony required to order attorney’s fees in a paternity action?

Answer 19

No. 742.045

Question 20

Can fees be assessed against DOR in a paternity action?

Answer 20

Yes, but only pursuant to 57.105(1).

Question 21

What is the effect on the marriage of the mother and father of a child born out of wedlock?

Answer 21

The child shall be deemed the child of the husband and wife as though born within wedlock.

Question 22

Who is the natural guardian of a child born out of wedlock?

Answer 22

The mother of the child born out of wedlock AND a father WHO HAS ESTABLISHED PATERNITY UNDER 742.011 OR 742.10 are the natural guardians of the child and are entitled to and subject to the rights and responsibilities of parents.

Question 23

If a father hasn’t established paternity under 742.011 or 742.10, are they considered the natural guardian?

Answer 23

No. If a father has not established paternity under 742.011 or 742.10, only the mother is the natural guardian of the child and therefore, the mother is entitled to primary residential care and custody of the child unless the court enters an order stating othyerwise.

Question 24

Can a father request timesharing and parental responsibility prior to the birth of a child?

Answer 24

No. Only after the birth of the child.

Question 25

What is the presumption of legitimacy?

Answer 25

The law presumes that the husband of a biological mother of a child is the child’s legal father.

Question 26

How can the presumption of legitimacy be overcome?

Answer 26

When there is clear and convincing evidence and it is determined that rebutting the presumption is in the best interests of the child.

Question 27

Is dual fathership recognized in Florida?

Answer 27

No.

Question 28

When a child is born during the course of an in tact marriage, can a putative father obtain an order for a blood/DNA test?

Answer 28

Yes, but the Court is required to hear argument from the parties, including the legal father, and a GAL on behalf of the child. The legal father is entitled to notice and an opportunity to be heard. The child (through a GAL) is an indispensable party.

Question 29

What is a Privette hearing?

Answer 29

A Privette hearing is required prior to ordering a blood/DNA test for a putative father when the child was born during the course of an in tact marriage and therefore there is a presumption of legitimacy. The moving party has the burden to prove by clear and convincing evidence that it is in the child’s best interests to overcome the presumption of legitimacy.

Question 30

What must be proven in order for the court to order a blood test when the presumption of legitimacy is raised by a putative father?

Answer 30

Trial court hearing petition for blood test in paternity action in which presumption of legitimacy is raised by putative father is required to determine that complaint is apparently accurate factually, is brought in good faith, and is likely to be supported by reliable evidence, and to find that child’s best interests will be better served even if blood test later proves child’s factual illegitimacy; one seeking test bears burden of proving these elements by clear and convincing evidence.

Question 31

Is a bio dad entitled to a paternity test if he signed a voluntary acknowledgment of paternity that was not rescinded within 60 days of execution?

Answer 31

Not unless the voluntary acknowledgment was the product of duress, fraud or material mistake of fact.

Question 32

Is there as right to a jury trial at a Privette hearing?

Answer 32

No.

Question 33

What is required for a bio dad to have standing to rebut the presumption of legitimacy when bio mom was married when the child was born?

Answer 33

When he has manifested a substantial and continuing concern for the welfare of the child. Simmonds v. Perkins.

Question 34

Can the presumption of legitimacy be overcome when a married couple stipulates that the husband is not the bio dad?

Answer 34

No, it is not enough.

Question 35

What is the “non-access rule” and does it defeat the presumption of legitimacy?

Answer 35

This occurs when the husband lacked access to the wife at the time of conception and yes it defeats the presumption of legitimacy.

Question 36

Is constructive service permitted in paternity actions?

Answer 36

No unless you are serving the legal father.

Question 37

Is trial by jury permitted in a paternity action.

Answer 37

Yes, but not a Privette hearing/trial.

Question 38

is the father obligated to contribute to hospital or medical expenses incident to birth of child?

Answer 38

Yes

Question 39

Are bills for pregnancy, child birth and scientific testing admissible?

Answer 39

Yes and without the requirement of third party foundation testimony.

Question 40

What special language is required in an order granting paternity testing?

Answer 40

“Any objection to the test results must be made inwriting and must be filed with the Court at least ten (10) days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented” See 742.12

Question 41

What statute governs disestablishment of paternity?

Answer 41

742.18

Question 42

What must be included in a Petition to Disestablish Paternity?

Answer 42

a) an affidavit by the petitioner that newly discovered evidence relating to the paternity of a child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation;

b) the 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 CS cannot be the father of the child for whom support is required OR an affidavit executed by the petitioner stating he did not have access to the child to have scientific testing performed prior to filing the petition (a male who suspects he is not the father but does not have access to the child may file a petition requesting the court to order the child be tested);

c) an affidavit executed by the petitioner stating that the petitioner is current on all child support payments or that he has substantially complied with his child support obligation and that any delinquency arose from his inability for just cause to pay the delinquent child support.

Question 43

When SHALL the court grant the relief requested in a Petition to Disestablish Paternity?

Answer 43

(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 44

If the male seeking to disestablish paternity engaged in certain conduct after learning he was not the bio dad, then the court shall not grant the relief in the Petition to Disestablish Paternity. What is this conduct?

Answer 44

(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 45

Does the male who is seeking to disestablish paternity have to continue to pay child support during the pendency of the proceeding?

Answer 45

Yes, bu7t the court can order the child support to be paid to the court registry until the final determination has been made.

Question 46

Who has to be served with a Petition to Disestablish Paternity?

Answer 46

The mother or other legal guardian of the child and DOR if child support was established administratively.

Question 47

What is the effect of disestablishing paternity?

Answer 47

In the event relief is granted pursuant to this section, relief shall be limited to the issues of prospective child support payments and termination of parental rights, custody, and visitation rights. The male’s previous status as father continues to be in existence until the order granting relief is rendered. All previous lawful actions taken based on reliance on that status are confirmed retroactively but not prospectively. This section shall not be construed to create a cause of action to recover child support that was previously paid.

Question 48

Who pays for the cost of scientific testing in a disestablishment of paternity action?

Answer 48

The party seeking the scientific testing.

Question 49

The rendition of an order granting a petition to disestablish paternity does not effect the legitimacy of a child born during a lawful marriage. True or false?

Answer 49

True.

Question 50

How is Privette distinguished from disestablishing paternity under 742.18?

Answer 50

In Privette, the Florida Supreme Court held that the trial court must find that the child’s best interests will be better served by ordering a blood test, even if the blood test later proves the child’s “factual illegitimacy.” Dep’t of H.R.S. v. Privette, 617
So.2d 305 (Fla. 1993). In Daniel v. Daniel, 695 So.2d 1253 (Fla. 1997) the Court
further explained that Privette’s application is limited to those instances where a
child faces the threat of being declared illegitimate and the “legal father” faces the
threat of losing parental rights which he is seeking to maintain. Conversely,
Section 742.18, Florida Statutes, provides a mechanism under which a man may
disestablish his paternity and avoid further support obligations. In an action to
disestablish paternity, the absence of another putative father who is willing to “step
in” and establish paternity cannot preclude the petitioner from an order
disestablishing his paternity. L.G. v. Dep’t of Children and Families, 227 So.3d
653 (Fla. 4th DCA 2017).

Question 51

What are Title IV-D cases?

Answer 51

Child support matters involving the Department of Revenue.

Question 52

Can custody and/or visitation be requested in a DOR action?

Answer 52

No.

Question 53

Does the court have jurisdiction to distribute property in a Chapter 742 paternity action?

Answer 53

No. A separate action must be filed.

Question 54

Define putative father.

Answer 54

An individual who is or may be the biological father of a child whose paternity has not been established and whose other was unmarried when the child was conceived and born.

Question 55

Is a showing of a substantial change in circumstances required when modifying a temporary support order under chapter 742?

Answer 55

No. Only good cause is required.

Question 56

What must be included in all orders establishing paternity?

Answer 56

Child support.

Question 57

What is the standard of review regarding a change in a child’s surname?

Answer 57

Abuse of discretion.

Question 58

When can a child’s surname be changed?

Answer 58

Upon a showing that the change is required for the welfare of the minor child.

Question 59

What does 382.013 provide with regard to the child’s surname?

Answer 59

Pursuant to §382.013(3)(b), if the court fails to specify a surname for the child and the mother and father disagree on the child’s surname, the surname selected by the father and the surname selected by the mother shall both be entered on the birth certificate, separated by a hyphen, with the selected names in alphabetical order.

Question 60

What happens when DNA testing shows the alleged father’s statistical probability of paternity equals or exceeds 95%?

Answer 60

It creates a rebuttable presumption that the alleged father is the biological father of a child and if a party fails to rebut the presumption, the court may enter summary judgment of paternity.

Question 61

What happens when the scientific testing shows the alleged father cannot be the biological father?

Answer 61

The paternity petition is dismissed.

Question 62

Are DNA tests automatically admissible in a paternity proceeding?

Answer 62

Blood tests are not automatically admissible. Fla. Stat. § 742.12. If an objection
is filed within 10 days of the filing of the results, in order to admit DNA evidence in
paternity proceedings, the proponent of the evidence must lay the proper predicate by producing the affidavit or testimony of the technician who actually performed the tests or the affidavit or testimony of the custodian of records for the facility performing the test. Stevens v. D.O.R. ex rel Beltran, 790 So.2d 1182 (Fla. 2d DCA 2001). Results must be authenticated, and a reliable chain of custody must be proven in order for the results to be admissible.

Question 63

Can the court order paternity testing if paternity was established by signing the birth certificate or acknowledgment of paternity that was not rescinded within 60 days?

Answer 63

Not unless it is in the child’s best interest to do so.

Question 64

What is the statute of limitations for paternity cases?

Answer 64

The child’s age of majority plus 4 years.

Question 65

Is the presumption of legitimacy codified by statute?

Answer 65

Yes. 382.013 provides, “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”

Question 66

White v. Lee-Yuk?

Answer 66

The mother in a same-sex marriage became pregnant with the assistance of a man who was also in a same-sex marriage. The biological mother put her wife’s name on the child’s birth certificate as the other parent. The biological mother later separated from her wife and moved to Florida to live with the minor child’s father and his husband. After a period of time, the biological mother left the minor child with the father and his husband to work overseas. While gone, the mother agreed to marry a member of the armed forces whom she met while abroad that did not live in Florida. When the mother returned to Florida, she filed a Petition for divorce with a request to relocate with the minor child to Oklahoma to live with her fiancé. Prior to a hearing, the parties entered into a tri-custodial agreement with a temporary time-sharing schedule. The trial court denied her request to relocate. The appellate
court affirmed the ruling noting that despite the fact that the putative father’s paternity petition had not yet been adjudicated, because of a temporary tri-custodial time-sharing arrangement, he had standing under the relocation statute as the relocation statute expands standing beyond two legally recognized parents “to every other person entitled to access to or time-sharing with the child.” As such, any person served with the Petition, including the putative father, has standing to object to
the relocation.