House Bill hb0073

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    Florida House of Representatives - 2002                  HB 73

        By Representative Smith






  1                      A bill to be entitled

  2         An act relating to paternity fraud; creating s.

  3         409.25576, F.S.; creating a child support

  4         restitution enforcement program within the

  5         Department of Revenue; providing criteria for

  6         the enforcement of the program by the

  7         department; creating s. 742.125, F.S.;

  8         requiring paternity testing under certain

  9         circumstances; providing a definition;

10         providing for the identification of possible

11         prospective paternity candidates; providing for

12         child support obligations; providing for

13         retroactive restitution; providing an effective

14         date.

15  

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

17  

18         Section 1.  Section 409.25576, Florida Statutes, is

19  created to read:

20         409.25576  Child support restitution enforcement

21  program.--

22         (1)  The child support restitution enforcement program

23  is created within the Department of Revenue. The department

24  shall proceed with enforcement in cases where there has been

25  fraud or error in divorces which occurred prior to the

26  court-mandated DNA paternity testing required in s. 742.125.

27         (a)  If the mother of the child offers restitution

28  without requiring the ex-husband to bring a petition or motion

29  in front of the court, the interest rate used shall be 6

30  percent and the interest shall be compounded monthly. The

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    Florida House of Representatives - 2002                  HB 73

    727-137-02






  1  state attorney shall not bring criminal proceedings against

  2  the child's mother for fraud.

  3         (b)  If the husband is forced to petition or motion the

  4  court to request restitution and the mother of the child

  5  agrees without counter argument, the interest rate used shall

  6  be 8 percent and the interest shall be compounded monthly.

  7         1.  The husband involved will be allowed to pursue

  8  criminal proceedings against the mother for fraud.

  9         2.  If the husband requests restitution before the

10  court and the mother files counter petitions to disallow

11  restitution, the interest rate shall be calculated at 10

12  percent, and the interest shall be compounded on a

13  semi-monthly or weekly basis, depending on the payment

14  frequency in the original child support order. In this

15  instance, the mother shall bear all costs for paternity

16  testing and court costs, including attorney fees for the

17  ex-husband. Criminal proceedings for felony perjury and

18  findings of fraud against the mother shall be automatically

19  instituted by the appropriate state attorney's office.

20         (c)  The restitution schedules set forth in this

21  section shall not bar the defrauded father or the child,

22  either during minority or at majority, in proceeding with a

23  civil damages lawsuit against the mother or the biological

24  father.

25         (d)  The amount of prior paid child support, including

26  principal and interest, shall be paid in a one-time payment to

27  the husband.

28         1.  If a one-time payment is not feasible, the mother's

29  wages shall be garnished at the same percentage rate of

30  previous child support payments.

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    Florida House of Representatives - 2002                  HB 73

    727-137-02






  1         2.  If the husband is currently paying child support

  2  for other biological children born of the same marriage, then

  3  the child support payments shall be offset by the restitution

  4  amount.

  5         3.  The mother shall be subject to the same actions for

  6  nonpayment as a person not paying child support, which

  7  includes, in addition to any other action:

  8         a.  Loss of drivers license.

  9         b.  Loss of professional licenses, including suspension

10  from The Florida Bar.

11         c.  Seizure of IRS tax refunds.

12         d.  Seizure of worker's compensation and other

13  insurance moneys.

14         e.  Seizure of retirement, IRA, and Keogh funds.

15         f.  Seizure of bank accounts and personal property.

16         g.  Jail time for contempt of court for nonpayment of

17  court-ordered restitution.

18         (2)  The time limit for paternity challenges in divorce

19  and child support proceedings shall be prior to the 21st

20  birthday of the child, or if more than one child is involved,

21  the time limit shall be upon the 21st birthday of the youngest

22  child.

23         (3)  If, during any legal action relating to child

24  custody or support, or any time after the initial child

25  support case is closed in which the husband has a child

26  support obligation, the child's mother states that the child

27  is not the biological offspring of the person ordered to pay

28  child support, such statement shall constitute prima facie

29  evidence of fraud and perjury with all punishments and

30  penalties provided by law.

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    Florida House of Representatives - 2002                  HB 73

    727-137-02






  1         Section 2.  Section 742.125, Florida Statutes, is

  2  created to read:

  3         742.125  Paternity testing required; identification of

  4  paternity candidates; child support obligation.--

  5         (1)  As used in this section, the term "husband" means

  6  current husband, ex-husband, ex-spouse, or a male married to

  7  the child's biological mother when the child was conceived or

  8  born.

  9         (2)  Any other provision of law to the contrary

10  notwithstanding after the effective date of this act, in all

11  divorce or child support cases, DNA paternity testing shall be

12  ordered by the court, at the initial hearing, except in the

13  case of adopted children and children from a previous

14  marriage.

15         (a)  If DNA testing determines that the husband is not

16  the biological father of one or more of the children, the

17  mother shall be required to identify all possible prospective

18  paternity candidates.

19         1.  The mother's lack of compliance in identifying

20  prospective paternity candidates will be construed as indirect

21  criminal contempt of court.

22         2.  The penalties for lack of compliance will be the

23  maximum allowed under the law.

24         (b)  The court shall require a child support obligation

25  of the biological father.

26         (c)  The husband shall not be required to pay mandatory

27  child support nor be subject to any actions relating to child

28  support obligations from the court or child support

29  enforcement agencies.

30         (d)  If the biological father is deceased or cannot be

31  located, the husband may make informed consent to pay child

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    Florida House of Representatives - 2002                  HB 73

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  1  support, but shall not be obligated or required by law to pay

  2  child support. If the husband voluntarily consents to pay

  3  child support in place of the child's biological father, he

  4  may elect at any time to cease paying child support upon 60

  5  day's notice to the mother and the court.

  6         1.  The husband, if he is voluntarily paying the child

  7  support obligation in place of the child's biological father,

  8  shall receive no interference from the children's mother

  9  regarding visitation or contact with the child.

10         2.  If the child's mother interferes in the visitation

11  of the current husband with the child he is supporting, the

12  voluntary child support of the husband shall cease immediately

13  without 60 day's notice to the court.

14         (e)  The husband retains the right to sue the

15  biological father or his estate for punitive damages and

16  recovery of costs related to support of the child.

17         (3)  Retroactive restitution may be awarded by the

18  court in past divorce cases where child support is or has been

19  paid and in which later DNA evidence shows that the husband is

20  not the biological father of the child in question. The amount

21  of the restitution shall be the entire amount paid for the

22  child support in question, plus interest. The amount shall be

23  calculated by computing a schedule where each child support

24  payment will be treated as if it were a deposit into a savings

25  account at current compound interest rates.

26         Section 3.  This act shall take effect July 1, 2002.

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    Florida House of Representatives - 2002                  HB 73

    727-137-02






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  2                          HOUSE SUMMARY

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      Creates a child support restitution enforcement program
  4    within the Department of Revenue to proceed with
      enforcement where there has been fraud or error in
  5    divorce proceedings which occurred prior to
      court-mandated DNA testing. Requires DNA paternity
  6    testing in all divorce and child support cases. See bill
      for details.
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