Florida Senate - 2009                                    SB 1316
       
       
       
       By Senator Siplin
       
       
       
       
       19-00709-09                                           20091316__
    1                        A bill to be entitled                      
    2         An act relating to child support; amending s. 742.18,
    3         F.S.; eliminating the requirement for a man seeking to
    4         disestablish paternity and terminate a child support
    5         obligation to affirm that he is current on his child
    6         support obligation or that any delinquency is based on
    7         inability to pay; providing for relief from past-due
    8         child support obligations; revising a provision
    9         relating to naming the father on a child's birth
   10         certificates to conform to procedures under ch. 383,
   11         F.S.; providing an effective date.
   12         
   13  Be It Enacted by the Legislature of the State of Florida:
   14         
   15         Section 1. Section 742.18, Florida Statutes, is amended to
   16  read:
   17         742.18 Disestablishment of paternity or termination of
   18  child support obligation.—
   19         (1) This section establishes circumstances under which a
   20  male may disestablish paternity or terminate a child support
   21  obligation when the male is not the biological father of the
   22  child. To disestablish paternity or terminate a child support
   23  obligation, the man ordered to pay child support male must file
   24  a petition in the circuit court having jurisdiction over the
   25  child support obligation. The petition must be served on the
   26  mother or other legal guardian or custodian of the child. If the
   27  child support obligation was determined administratively and has
   28  not been ratified by a court, then the petition must be filed in
   29  the circuit court where the mother or legal guardian or
   30  custodian resides. The Such a petition must be served on the
   31  Department of Revenue and on the mother or legal guardian or
   32  custodian of the child. If the mother or legal guardian or
   33  custodian no longer resides in the state, the petition may be
   34  filed in the circuit court in the county where the petitioner
   35  resides. The petition must include:
   36         (a) An affidavit executed by the petitioner that newly
   37  discovered evidence relating to the paternity of the child has
   38  come to the petitioner's knowledge since the initial paternity
   39  determination or establishment of a child support obligation.
   40         (b) The results of scientific tests that are generally
   41  acceptable within the scientific community to show a probability
   42  of paternity, administered within 90 days prior to the filing of
   43  such petition, which results indicate that the man male ordered
   44  to pay such child support cannot be the biological father of the
   45  child for whom support is required, or an affidavit executed by
   46  the petitioner stating that he did not have access to the child
   47  to have scientific testing performed prior to the filing of the
   48  petition. A man male who suspects he is not the biological
   49  father but does not have access to the child to have scientific
   50  testing performed may file a petition requesting the court to
   51  order the child to be tested.
   52         (c)An affidavit executed by the petitioner stating that
   53  the petitioner is current on all child support payments for the
   54  child for whom relief is sought or that he has substantially
   55  complied with his child support obligation for the applicable
   56  child and that any delinquency in his child support obligation
   57  for that child arose from his inability for just cause to pay
   58  the delinquent child support when the delinquent child support
   59  became due.
   60         (2) The court shall grant relief on a petition filed in
   61  accordance with subsection (1) upon a finding by the court of
   62  all of the following:
   63         (a) Newly discovered evidence relating to the paternity of
   64  the child has come to the petitioner's knowledge since the
   65  initial paternity determination or establishment of a child
   66  support obligation.
   67         (b) The scientific test required in paragraph (1)(b) was
   68  properly conducted.
   69         (c)The male ordered to pay child support is current on all
   70  child support payments for the applicable child or that the male
   71  ordered to pay child support has substantially complied with his
   72  child support obligation for the applicable child and that any
   73  delinquency in his child support obligation for that child arose
   74  from his inability for just cause to pay the delinquent child
   75  support when the delinquent child support became due.
   76         (c)(d) The man male ordered to pay child support has not
   77  adopted the child.
   78         (d)(e) The child was not conceived by artificial
   79  insemination while the man male ordered to pay child support and
   80  the child's mother were in wedlock.
   81         (e)(f) The man male ordered to pay child support did not
   82  act to prevent the biological father of the child from asserting
   83  his paternal rights with respect to the child.
   84         (f)(g) The child was younger than 18 years of age when the
   85  petition was filed.
   86         (3) Notwithstanding subsection (2), a court may shall not
   87  set aside the paternity determination or child support order if
   88  the man ordered to pay child support male engaged in the
   89  following conduct after learning that he is not the biological
   90  father of the child:
   91         (a) Married the mother of the child while known as the
   92  reputed father in accordance with s. 742.091 and voluntarily
   93  assumed the parental obligation and duty to pay child support;
   94         (b) Acknowledged his paternity of the child in a sworn
   95  statement;
   96         (c) Consented to be named as the child's biological father
   97  on the child's birth certificate;
   98         (d) Voluntarily promised in writing to support the child
   99  and was required to support the child based on that promise;
  100         (e) Received written notice from any state agency or any
  101  court directing him to submit to scientific testing which he
  102  disregarded; or
  103         (f) Signed a voluntary acknowledgment of paternity as
  104  provided in s. 742.10(4).
  105         (4) If In the event the petitioner fails to make the
  106  requisite showing required by this section, the court shall deny
  107  the petition.
  108         (5) If the petitioner is entitled to In the event relief
  109  under is granted pursuant to this section, the court shall
  110  terminate all relief shall be limited to the issues of
  111  prospective and past due child support payment obligations
  112  payments and address termination of parental rights, custody,
  113  and visitation rights. The petitioner's male's previous status
  114  as the child's father shall continue continues to be in
  115  existence until the order granting relief is rendered. All
  116  previous lawful actions taken based on reliance on that status
  117  are confirmed retroactively but not prospectively. This section
  118  does not shall not be construed to create a cause of action to
  119  recover child support that was previously paid.
  120         (6) The duty to pay child support and other legal
  121  obligations for the child may shall not be suspended while the
  122  petition is pending except for good cause shown. However, the
  123  court may order the child support to be held in the registry of
  124  the court until final determination of paternity has been made.
  125         (7)(a)In an action brought pursuant to this section, If
  126  the scientific test results submitted in accordance with
  127  paragraph (1)(b) are provided solely by the petitioner male
  128  ordered to pay child support, the court on its own motion may,
  129  and on the petition of any party shall, order the child and the
  130  man male ordered to pay child support to submit to applicable
  131  scientific tests. The court shall provide that Such scientific
  132  testing must be done within no more than 30 days after the court
  133  issues its order.
  134         (a)(b) If the man male ordered to pay child support
  135  willfully fails to submit to scientific testing or if the mother
  136  or legal guardian or custodian of the child willfully fails to
  137  submit the child for testing, the court shall issue an order
  138  determining the relief on the petition against the party so
  139  failing to submit to scientific testing. If a party shows good
  140  cause for failing to submit to testing, such failure may shall
  141  not be considered willful. Nothing in This paragraph does not
  142  shall prevent the child from reestablishing paternity under s.
  143  742.10.
  144         (b)(c) The party requesting applicable scientific testing
  145  must shall pay any fees charged for the tests. If the custodian
  146  of the child is receiving services from an administrative agency
  147  in its role as an agency providing enforcement of child support
  148  orders, that agency shall pay the cost of the testing if it
  149  requests the test and may seek reimbursement for the fees from
  150  the person against whom the court assesses the costs of the
  151  action.
  152         (8) If the relief on a petition filed in accordance with
  153  this section is granted, the clerk of the court shall, within 30
  154  days following final disposition, forward to the Office of Vital
  155  Statistics of the Department of Health a certified copy of the
  156  court order or a report of the proceedings upon a form to be
  157  furnished by the department, together with sufficient
  158  information to enable the department to identify and, in
  159  accordance with s. 382.016(1)(c), amend the child's original
  160  birth certificate to remove and to enable the department to
  161  prepare a new birth certificate. Upon receipt of the certified
  162  copy or the report, the department shall prepare and file a new
  163  birth certificate that deletes the name of the man male ordered
  164  to pay child support as the father of the child. The certificate
  165  shall bear the same file number as the original birth
  166  certificate. All other items not affected by the order setting
  167  aside a determination of paternity shall be copied as on the
  168  original certificate, including the date of registration and
  169  filing. If the child was born in a state other than Florida, the
  170  clerk shall send a copy of the report or decree to the
  171  appropriate birth registration authority of the state where the
  172  child was born. If the relief on a petition filed in accordance
  173  with this section is granted and the mother or legal guardian or
  174  custodian requests that the court change the child's surname,
  175  the court may change the child's surname. If the child is a
  176  minor, the court shall consider whether it is in the child's
  177  best interests to grant the request to change the child's
  178  surname.
  179         (9) The rendition of an order granting a petition filed
  180  pursuant to this section does shall not affect the legitimacy of
  181  a child born during a lawful marriage.
  182         (10) If relief on a petition filed in accordance with this
  183  section is not granted, the court shall assess the costs of the
  184  action and attorney's fees against the petitioner.
  185         (11) Nothing in This section does not preclude precludes an
  186  individual from seeking relief from a final judgment, decree,
  187  order, or proceeding pursuant to Rule 1.540, Florida Rules of
  188  Civil Procedure, or from challenging a paternity determination
  189  pursuant to s. 742.10(4).
  190         Section 2. This act shall take effect July 1, 2009.