Senate Bill sb0438c1

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    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.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

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:

31  

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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 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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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 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;

31  

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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 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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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 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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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 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.

31  

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    Florida Senate - 2006                            CS for SB 438
    590-1747-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 438

 3                                 

 4  The committee substitute differs from the underlying bill in
    that it:
 5  
    --   Permits a male to petition for paternity disestablishment
 6       if he is unable to pay his child support obligation for
         just cause;
 7  
    --   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;
 9  
    --   Permits a child to reestablish paternity if paternity is
10       disestablished due to the mother's failure to submit the
         child to paternity testing;
11  
    --   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
16  
    --   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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