Divorce Attorney Scott J. Stadler

    • 09 JAN 15

    Dis-Establishing Paternity

    What is Paternity?

    Paternity is basically parental right and obligation of a father.  You have the right to make decisions on behalf of your child, or minor in your care, if you are the presumed, proven or appointed legal guardian.  You also have the obligation to protect, maintain and care for said child or minor.   In the case of divorce or if a child was born out of wedlock, establishment and / or disestablishment may be necessary, advantageous, desired or advisable.

    Why Dis-establish Paternity?

    In order to unburden himself of the responsibility of a child that he believes is not his own, and relieve his budget of the expense of child support for a child he believes is not his issue, a man may choose to file a disestablishment proceeding.

    There are other reasons for dis-establishing paternity.   Sometimes the father has never had any relationship with the child.  Sometimes the mother wants to eliminate the legal father from the child’s life, either because of her new life or for the safety of the child.

    For example, let’s say Barry and Jane were married for ten years.  In the last six, they had three kids, and none of them looked anything like Barry.  Let’s also say Barry found out after the divorce that Jane had been having an affair with the neighbor, Fabio, for 8 of the 10 years they were married.  Given these circumstances, Barry might want to attempt to find out if the children were actually Fabio’s.  If it turns out they are, then Barry could absolve himself of the expense of any more child support payments.   In this case, it would be worth the expense of a good family law attorney, court costs and DNA testing to find out if Fabio should actually be the one paying child support.

    DNA Testing

    Florida Statutes states:  “In any proceeding to establish paternity, the court on its own motion 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 court shall direct that the tests be conducted by a qualified technical laboratory.”

    So, in our case, Jane, the children, and Fabio would all have to submit to DNA testing to determine which man is the father.

    How it happens

    Florida Statutes provides for the disestablishment of paternity and/or child support obligation termination under certain circumstances.  The man (with assistance from a good attorney, hopefully!) files a Petition with the proper Court.  The Petition is also served on the mother, legal guardian or custodian of the child(ren) in question, as well as the Department of Revenue.

    The petition is accompanied by documentation and paperwork, including affidavits from the man stating that new information has come to light since the obligation was determined.  If scientific testing has been done, then those records are included.  If not (usually because the child/children have not been made available for the testing),  the Court may Order testing on the man, the mother and the child(ren) in question.

    When can paternity be disestablished?

    The petition to dis-establish paternity must be brought before the child’s 18th birthday.

    What is the criteria?

    In Florida, ALL of the following must be present for a consideration of dis-establishment of paternity:

    • The petitioner has discovered new evidence regarding the child’s paternity.
    • The paternity test submitted by the petitioner was properly conducted.
    • If the petitioner was ordered to pay child support for the child whose paternity is in

    question, the petitioner is current on the child support payments (An exception is allowed

    for cases of inability to pay.)

    • The man ordered to pay child support has not adopted the child.
    • The child was not conceived by artificial insemination while the man ordered to pay child support was married to the child’s mother.
    • The child was younger than 18 years old when the petition was filed.

    Moreover, if the petitioner has done any of the following AFTER learning he may not be the father, the court CAN NOT dis-establish paternity:

    • “Married the mother of the child while known as the reputed father…and voluntarily

    assumed the parental obligation and duty to pay child support.”

    • Acknowledged paternity in a sworn statement.
    • Consented to be named as the child’s father on the child’s birth certificate.
    • Promised in writing to support the child and was ordered to pay child support on that basis.
    • Disregarded a written order from a state agency or court to submit to paternity testing.
    • Signed a voluntary acknowledgment of paternity.

    (Really, this just makes sense if you think about it – you can’t petition to disestablish on one hand while acknowledging paternity on the other hand.)

    Putative Father Registry

    The Florida Office of Vital Statistics handles the Putative Father Registry.  Any man who may have impregnated a woman to whom he is not married, may file his paternity claim with the Putative Father Registry any time after the possible impregnation, as an assertion of paternity, up to the the time of the birth.  This serves as an assertion of paternity, claim to the child and notification to the State of Florida of intention to pay child support if paternity is established.  If, at the time of birth, the father and mother are not married, but the father is filed with the Putative Father Registry, and he wishes to be listed on the birth certificate, the mother must agree to it, or a Court can Order it.

    Florida Statutes provides:  “Registering with the Florida Putative Father Registry does not establish paternity, child support, parental rights, timesharing, or any other related relief.  It only entitles the unmarried biological father to notice in the case of a termination of parental rights proceeding.  If an unmarried biological father wishes to establish paternity, child support, parental rights, timesharing, or any other related relief, he should consider filing a paternity case.

    A revocation of claim of paternity may be made at any time prior to the birth by filing such revocation with the Florida Putative Father Registry.”

    Thist means that if a man so desires, he can simply revoke his claim of paternity with the Putative Father Registry, and then he is no longer responsible for the child, unless and until paternity is re-established, by Court Order or otherwise.

    Additionally, It is a criminal act to purposefully and knowingly give false information or lie in a paternity case, especially when government assistance is concerned.

    Every case is different, and it is important to remember that a good attorney is worth more than the money you spend.  It’s your life.   You don’t bargain-hunt when your family and your future are concerned.