Florida Senate - 2006 CS for SB 438
By the Committee on Judiciary; and Senator Lawson
590-1747-06
1 A bill to be entitled
2 An act relating to paternity; permitting a
3 petition to set aside a determination of
4 paternity or terminate a child support
5 obligation; specifying contents of the
6 petition; providing standards upon which relief
7 shall be granted; providing remedies;
8 prohibiting the suspension of child support
9 obligations while a petition is pending;
10 providing for scientific testing; providing for
11 the amendment of the child's birth certificate;
12 providing for assessment of costs and
13 attorney's fees; providing an effective date.
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15 Be It Enacted by the Legislature of the State of Florida:
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17 Section 1. (1) This section establishes circumstances
18 under which a male may disestablish paternity or terminate a
19 child support obligation when the male is not the biological
20 father of the child. To disestablish paternity or terminate a
21 child support obligation, the male must file a petition in the
22 court with continuing jurisdiction over the child support
23 obligation. The petition must also be served on the mother or
24 other legal guardian or custodian of the child. If the child
25 support obligation was determined administratively and has not
26 been ratified by a court, then the petition must be filed in
27 the circuit court where the mother or legal guardian or
28 custodian of the child resides. Such a petition must be served
29 on the Department of Revenue and on the mother or other legal
30 guardian or custodian. The petition must include:
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1 (a) An affidavit executed by the petitioner that newly
2 discovered evidence relating to the paternity of the child has
3 come to the petitioner's knowledge since the initial paternity
4 determination or establishment of a child support obligation.
5 (b) The results of scientific tests that are generally
6 acceptable within the scientific community to show a
7 probability of paternity, administered within 90 days prior to
8 the filing of such petition, which results indicate that the
9 male ordered to pay such child support cannot be the father of
10 the child for whom support is required, or an affidavit
11 executed by the petitioner stating that he did not have access
12 to the child to have scientific testing performed prior to the
13 filing of the petition. A male who suspects he is not the
14 father but does not have access to the child to have
15 scientific testing performed may file a petition requesting
16 the court to order the child to be tested.
17 (c) An affidavit executed by the petitioner stating
18 that the petitioner is current on all child support payments
19 for the child for whom relief is sought or that he has
20 substantially complied with his child support obligation for
21 the applicable child and that any delinquency in his child
22 support obligation for that child arose from his inability for
23 just cause to pay the delinquent child support when the
24 delinquent child support became due.
25 (2) The court shall grant relief on a petition filed
26 in accordance with subsection (1) upon a finding by the court
27 of all of the following:
28 (a) Newly discovered evidence relating to the
29 paternity of the child has come to the petitioner's knowledge
30 since the initial paternity determination or establishment of
31 a child support obligation.
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1 (b) The scientific test required in paragraph (1)(b)
2 was properly conducted.
3 (c) The male ordered to pay child support is current
4 on all child support payments for the applicable child or that
5 the male ordered to pay child support has substantially
6 complied with his child support obligation for the applicable
7 child and that any delinquency in his child support obligation
8 for that child arose from his inability for just cause to pay
9 the delinquent child support when the delinquent child support
10 became due.
11 (d) The male ordered to pay child support has not
12 adopted the child.
13 (e) The child was not conceived by artificial
14 insemination while the male ordered to pay child support and
15 the child's mother were in wedlock.
16 (f) The male ordered to pay child support did not act
17 to prevent the biological father of the child from asserting
18 his paternal rights with respect to the child.
19 (g) The child was younger than 18 years of age when
20 the petition was filed.
21 (3) Notwithstanding subsection (2), a court shall not
22 set aside the paternity determination or child support order
23 if the male engaged in the following conduct after learning
24 that he is not the biological father of the child:
25 1. Married the mother of the child while known as the
26 reputed father in accordance with s. 742.091, Florida
27 Statutes, and voluntarily assumed the parental obligation and
28 duty to pay child support;
29 2. Acknowledged his paternity of the child in a sworn
30 statement;
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Florida Senate - 2006 CS for SB 438
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1 3. Consented to be named as the child's biological
2 father on the child's birth certificate;
3 4. Voluntarily promised in writing to support the
4 child and was required to support the child based on that
5 promise;
6 5. Received written notice from any state agency or
7 any court directing him to submit to scientific testing which
8 he disregarded; or
9 6. Signed a voluntary acknowledgment of paternity as
10 provided in s. 742.10(4), Florida Statutes.
11 (4) In the event the petitioner fails to make the
12 requisite showing required by this section, the court shall
13 deny the petition.
14 (5) In the event relief is granted pursuant to this
15 section, relief shall be limited to the issues of prospective
16 child support payments and termination of parental rights,
17 custody, and visitation rights. The male's previous status as
18 father continues to be in existence until the order granting
19 relief is rendered. All previous lawful actions taken based on
20 reliance on that status are confirmed retroactively but not
21 prospectively. This section shall not be construed to create a
22 cause of action to recover child support that was previously
23 paid.
24 (6) The duty to pay child support and other legal
25 obligations for the child shall not be suspended while the
26 petition is pending except for good cause shown. However, the
27 court may order the child support to be held in the registry
28 of the court until final determination of paternity has been
29 made.
30 (7)(a) In an action brought pursuant to this section,
31 if the scientific test results submitted in accordance with
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1 paragraph (1)(b) are provided solely by the male ordered to
2 pay child support, the court on its own motion may, and on the
3 petition of any party shall, order the child and the male
4 ordered to pay child support to submit to applicable
5 scientific tests. The court shall provide that such scientific
6 testing be done no more than 30 days after the court issues
7 its order.
8 (b) If the male ordered to pay child support willfully
9 fails to submit to scientific testing or if the mother is the
10 custodian of the child and willfully fails to submit the child
11 for testing, the court shall issue an order determining the
12 relief on the petition against the party so failing to submit
13 to scientific testing. If a party shows good cause for failing
14 to submit to testing, such failure shall not be considered
15 willful. Nothing in this paragraph shall prevent the child
16 from reestablishing paternity under s. 742.10, Florida
17 Statutes.
18 (c) The party requesting applicable scientific testing
19 shall pay any fees charged for the tests. If the custodian of
20 the child is receiving services from an administrative agency
21 in its role as an agency providing enforcement of child
22 support orders, that agency shall pay the cost of the testing
23 if it requests the test and may seek reimbursement for the
24 fees from the person against whom the court assesses the costs
25 of the action.
26 (8) If the relief on a petition filed in accordance
27 with this section is granted, the clerk of the court shall,
28 within 30 days following final disposition, forward to the
29 Office of Vital Statistics of the Department of Health a
30 certified copy of the court order or a report of the
31 proceedings upon a form to be furnished by the department,
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1 together with sufficient information to identify the original
2 birth certificate and to enable the department to prepare a
3 new birth certificate. Upon receipt of the certified copy or
4 the report, the department shall prepare and file a new birth
5 certificate that deletes the name of the male ordered to pay
6 child support as the father of the child. The certificate
7 shall bear the same file number as the original birth
8 certificate. All other items not affected by the order setting
9 aside a determination of paternity shall be copied as on the
10 original certificate, including the date of registration and
11 filing. If the child was born in a state other than Florida,
12 the clerk shall send a copy of the report or decree to the
13 appropriate birth registration authority of the state where
14 the child was born. If the relief on a petition filed in
15 accordance with this section is granted, the court may change
16 the child's surname. If the child is a minor, the court shall
17 consider whether it is in the child's best interests to grant
18 the mother's request.
19 (9) The rendition of an order granting a petition
20 filed pursuant to this section shall not affect the legitimacy
21 of a child born during a lawful marriage.
22 (10) If relief on a petition filed in accordance with
23 this section is not granted, the court shall assess the costs
24 of the action and attorney's fees against the petitioner.
25 (11) Nothing in this section precludes an individual
26 from seeking relief from a final judgment, decree, or order of
27 proceeding pursuant to Rule 1.540, Florida Rules of Civil
28 Procedure, or from challenging a paternity determination
29 pursuant to s. 742.10(4), Florida Statutes.
30 Section 2. This act shall take effect July 1, 2006.
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Florida Senate - 2006 CS for SB 438
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 438
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4 The committee substitute differs from the underlying bill in
that it:
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-- Permits a male to petition for paternity disestablishment
6 if he is unable to pay his child support obligation for
just cause;
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-- Clarifies that a male who engages in certain paternal
8 conduct while knowing he is not the father of a child
cannot petition for paternity disestablishment;
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-- Permits a child to reestablish paternity if paternity is
10 disestablished due to the mother's failure to submit the
child to paternity testing;
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-- Permits scientific paternity tests rather than genetic
12 paternity tests exclusively;
13 -- Provides for the revision of a child's birth certificate
and for the change of a child's surname when paternity is
14 disestablished;
15 -- Provides that paternity disestablishment does not affect
the legitimacy of a child born during wedlock; and
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-- Provides that the measure does not foreclose options to
17 disestablish paternity under the Rules of Civil Procedure
or s. 742.10, F.S.
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