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Disestablishment of Paternity

In Florida, disestablishment of paternity is possible if certain circumstances exist. Florida Statute 742.18 is the law that governs disestablishment of paternity in Florida. Among other things, newly found evidence must be discovered as the basis for initiating a Petition for Disestablishment of Paternity.

742.18 Disestablishment of paternity or termination of child support obligation.—(1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.

In addition to the discovery of newly found evidence, as the basis for a Petition for Disestablishment of Paternity, other specific circumstances must exist.

For example, a few of the circumstances that must exist are:

  • the petitioner must not have adopted the child;
  • the petitioner must be substantially current on child support payments;
  • and the petitioner must not have acknowledged his paternity in a sworn statement since discovering evidence that he is not the father.

Scientific Testing

Another requirement is that there is scientific testing that excludes the alleged father as the biological father. according to F.S. 742.12(2) the court may: "require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity."

The statute does not specify that a DNA test is required. But, in general, that is what the statute must mean. It also seems reasonable that a scientific test showing that the alleged father is sterile would satisfy the court that he could not be the father.

The Florida courts now seem to be accepting as legal DNA tests "over the counter" DNA test kits which have been verified by an authorized party. This may be a substantial savings if you need to have a DNA test done for court. Nowadays the DNA test is a mouth swab test, and does not need to involve a blood sample. Check with your clerk of court to find out exactly what is meant by a "legal" DNA test in your jurisdiction.

Legal Father

A "rebuttable presumption" is created that a child is, in fact, the biological child, of the husband, married to the child's mother. The husband is the legal father, unless he proves otherwise and disestablishes his paternity. The courts may be reluctant to disestablish paternity when the child has bonded with the alleged father, even if he is not, in fact, the biological father. In addition, that although paternal rights are terminated with a disestablishment of paternity order; this process is not a voluntary termination of paternal rights by a biological father. In Florida, it is nearly impossible for a biological father to voluntarily terminate parental rights even if he has absolutely no contact with the child. 

Child Support Paid

It is unlikely that an alleged father can recover child support payments already paid. In the Petition to Disestablish Paternity, the alleged father may request that the Department of Revenue refrain from disbursing child support payments while his Petition to Disestablish Paternity is pending. If a scientific test shows and the court finds that he may disestablish his paternity the monies not disbursed may be returned to him. If the alleged father believes that the mother knowingly claimed that he was the father, knowing that he was not, he may be able to sue her in civil court to recover the child support payments he already paid.

Separated but Still Married

When a married couple separates but remains married, and the wife continues on to a new relationship and has a child of that relationship; the husband is technically considered the legal father. This is just one of the many reasons to make a clean break when separating; and decide to divorce through the courts as soon as it is clear. A man can become financially responsible for a child he had no part in creating, if he does not divorce the mother before the child is born or conceived; or disestablish paternity.

Reasons a Petition May be Denied

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.



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