Paternity Disestablishment

Boca Raton Divorce and Family Law Attorney

Introduction

Florida now provides by statute a very specific procedure with certain requirements for the disestablishment of paternity. Only a male may disestablish paternity pursuant to the law. Florida law provides that when children are born during the marriage there is a presumption that the children are the children of the mother’s husband. The statute provides the circumstances under which a male may disestablish paternity or terminate a child support obligation when the male finds out that he is not the biological father child.

Procedure

To initiate a case to disestablish paternity, it is necessary for the male to file a petition. If the mother or legal guardian or custodian no longer resides in Florida, the petition may be filed in the county where the petitioner resides. The petition must be served on the mother or other legal guardian or custodian of the child. If the child support obligation was determined administratively and has not been ratified by the court, then the petition must be filed in the county where the mother or legal guardian reside. The petition must be served on the Department of Revenue or the mother or legal guardian. The statute requires very specific information that must be contained in the petition in order to state a cause of action that would permit the court to act on the petition. The petitioner is not required to prove fraud or duress when attempting to disestablish paternity.

Required Court Findings

The court is required to make certain findings in order to disestablish paternity. Among the findings are newly discovered evidence, that a scientific test was properly conducted and that the male ordered to pay child support is current on all child-support payments. It is also necessary that the child be younger than 18 years of age when the petition is filed.

Child Support

This proceeding does not create a cause of action to recover child-support that was previously paid. Relief under the statute is limited to prospective child-support payments and termination of parental rights, custody, and visitation. However, the court may order the child support to be held in the registry of the court until a final determination of paternity has been made. Therefore, the court cannot cancel child-support arearages.

Previous Status

The male’s previous status as father continues to be in existence until the court issues its order granting relief. All previous lawful actions taken based on belief in that status are confirmed retroactively, but not prospectively.

Legitimacy of child not Affected

If the court enters an order granting a petition to disestablish paternity, it does not affect the legitimacy of a child born during a lawful marriage.

Child’s Name Change

If the court grants the petition to disestablish paternity and the mother or legal guardian or custodian request that the child’s surname be changed, the court may change the child’s surname.

If Fraud is Present

The paternity disestablishment statute does not prevent an individual from seeking relief from a final judgment, decree, or proceeding, if fraud can be established. If fraud is established the court can grant additional remedies such as compensatory damages for past child-support obligations. However, the attack on the final judgment based upon fraud must be made within one year of the entry of the judgment. The procedure for attacking a judgment based upon fraud is different from the aforementioned statute concerning the disestablishment of paternity. It is based upon a specific court rule and the cases that have interpreted that court rule.

Because of the technical nature of seeking to disestablish paternity, it is highly important to retain an attorney with expertise in this area.

Contact a Boca Raton Divorce and Family Law Attorney.

The law offices of Boca Raton Divorce and Family Law Attorney, Jessica Mishali handles all forms of divorce and family law cases including the disestablishment of paternity. We will aggressively handle your case and always strive to protect your rights with professional excellence. Please contact The Law Office of Jessica Mishali, P.A. at (561) 833-2772 for a consultation or contact us online.