HB 1195

1
A bill to be entitled
2An act relating to paternity; permitting a motion to set
3aside a determination of paternity; specifying contents of
4the motion; providing standards upon which relief shall be
5granted; providing remedies; providing that child support
6obligations shall not be suspended while a motion is
7pending; providing for genetic testing; providing for
8assessment of costs and attorney's fees; providing an
9effective date.
10
11Be It Enacted by the Legislature of the State of Florida:
12
13     Section 1.  (1)  In any action in which a male is required
14to pay child support as the father of a child, a motion to set
15aside a determination of paternity may be made at any time upon
16the grounds set forth in this section. Any such motion shall be
17filed in the circuit court and shall include:
18     (a)  An affidavit executed by the movant that newly
19discovered evidence has come to the movant's knowledge since the
20entry of judgment.
21     (b)  The results of scientific tests that are generally
22acceptable within the scientific community to show a probability
23of paternity, administered within 90 days prior to the filing of
24such motion, which results indicate that the male ordered to pay
25such child support cannot be the father of the child for whom
26support is required.
27     (c)  An affidavit executed by the movant stating that the
28movant is current on all child support payments.
29     (2)  The court shall grant relief on a motion filed in
30accordance with subsection (1) upon a finding by the court of
31all of the following:
32     (a)  The genetic test required in paragraph (1)(b) was
33properly conducted.
34     (b)  The male is current on all child support payments.
35     (c)  The male ordered to pay child support has not adopted
36the child.
37     (d)  The child was not conceived by artificial insemination
38while the male ordered to pay child support and the child's
39mother were in wedlock.
40     (e)  The male ordered to pay child support did not act to
41prevent the biological father of the child from asserting his
42paternal rights with respect to the child.
43     (f)  The male ordered to pay child support with knowledge
44that he is not the biological father of the child has not:
45     1.  Married the mother of the child and voluntarily assumed
46the parental obligation and duty to pay child support;
47     2.  Acknowledged his paternity of the child in a sworn
48statement;
49     3.  Been named as the child's biological father on the
50child's birth certificate with his consent;
51     4.  Been required to support the child because of a
52voluntary written promise;
53     5.  Received written notice from any state agency or any
54court directing him to submit to genetic testing which he
55disregarded;
56     6.  Signed a voluntary acknowledgment of paternity as
57provided in s. 742.10(4), Florida Statutes; or
58     7.  Proclaimed himself to be the child's biological father.
59     (3)  In the event the movant fails to make the requisite
60showing required by this section, the court shall deny the
61motion.
62     (4)  In the event relief is granted pursuant to this
63section, relief shall be limited to the issues of prospective
64child support payments, past due child support payments, and
65termination of parental rights, custody, and visitation rights.
66This section shall not be construed to create a cause of action
67to recover child support that was previously paid.
68     (5)  The duty to pay child support and other legal
69obligations for the child shall not be suspended while the
70motion is pending except for good cause shown. However, the
71court may order the child support be held in the registry of the
72court until final determination of paternity has been made.
73     (6)(a)  In an action brought pursuant to this section, if
74the genetic test results submitted in accordance with paragraph
75(1)(b) are provided solely by the male ordered to pay child
76support, the court on its own motion may, and on the motion of
77any party shall, order the child's mother, the child, and the
78male ordered to pay child support to submit to genetic tests.
79The court shall provide that such genetic testing be done no
80more than 30 days after the court issues its order.
81     (b)  If the mother of the child or the male ordered to pay
82child support willfully fails to submit to genetic testing or if
83either such party is the custodian of the child and willfully
84fails to submit the child for testing, the court shall issue an
85order determining the relief on the motion against the party so
86failing to submit to genetic testing. If a party shows good
87cause for failing to submit to genetic testing, such failure
88shall not be considered willful.
89     (c)  The party requesting genetic testing shall pay any
90fees charged for the tests. If the custodian of the child is
91receiving services from an administrative agency in its role as
92an agency providing enforcement of child support orders, such
93agency shall pay the cost of genetic testing if it requests the
94test and may seek reimbursement for the fees from the person
95against whom the court assesses the costs of the action.
96     (7)  If relief on a motion filed in accordance with this
97section is not granted, the court shall assess the costs of the
98action and attorney's fees against the movant.
99     Section 2.  This act shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.