| 1 | The Civil Justice Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to paternity; permitting a petition to set |
| 7 | aside a determination of paternity; specifying contents of |
| 8 | the petition; providing standards upon which relief shall |
| 9 | be granted; providing remedies; providing that child |
| 10 | support obligations shall not be suspended while a |
| 11 | petition is pending; providing for genetic testing; |
| 12 | providing for assessment of costs and attorney's fees; |
| 13 | providing an effective date. |
| 14 |
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| 15 | Be It Enacted by the Legislature of the State of Florida: |
| 16 |
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| 17 | Section 1. (1) In any action in which a male is required |
| 18 | to pay child support as the father of a child, a petition to set |
| 19 | aside a determination of paternity may be made at any time upon |
| 20 | the grounds set forth in this section. Any such petition shall |
| 21 | be filed in the circuit court and shall include: |
| 22 | (a) An affidavit executed by the petitioner that newly |
| 23 | discovered evidence has come to the petitioner's knowledge since |
| 24 | the entry of judgment. |
| 25 | (b) The results of scientific tests that are generally |
| 26 | acceptable within the scientific community to show a probability |
| 27 | of paternity, administered within 90 days prior to the filing of |
| 28 | such petition, which results indicate that the male ordered to |
| 29 | pay such child support cannot be the father of the child for |
| 30 | whom support is required. A male who suspects he is not the |
| 31 | father but does not have access to the child to have genetic |
| 32 | testing performed may file a petition requesting the court to |
| 33 | order the child to be tested. |
| 34 | (c) An affidavit executed by the petitioner stating that |
| 35 | the petitioner is current on all child support payments for the |
| 36 | child for whom relief is sought. |
| 37 | (2) The court shall grant relief on a petition filed in |
| 38 | accordance with subsection (1) upon a finding by the court of |
| 39 | all of the following: |
| 40 | (a) The genetic test required in paragraph (1)(b) was |
| 41 | properly conducted. |
| 42 | (b) The male is current on all child support payments. |
| 43 | (c) The male ordered to pay child support has not adopted |
| 44 | the child. |
| 45 | (d) The child was not conceived by artificial insemination |
| 46 | while the male ordered to pay child support and the child's |
| 47 | mother were in wedlock. |
| 48 | (e) The male ordered to pay child support did not act to |
| 49 | prevent the biological father of the child from asserting his |
| 50 | paternal rights with respect to the child. |
| 51 | (f) The male ordered to pay child support with knowledge |
| 52 | that he is not the biological father of the child has not: |
| 53 | 1. Married the mother of the child and voluntarily assumed |
| 54 | the parental obligation and duty to pay child support; |
| 55 | 2. Acknowledged his paternity of the child in a sworn |
| 56 | statement; |
| 57 | 3. Been named as the child's biological father on the |
| 58 | child's birth certificate with his consent; |
| 59 | 4. Been required to support the child because of a |
| 60 | voluntary written promise; |
| 61 | 5. Received written notice from any state agency or any |
| 62 | court directing him to submit to genetic testing which he |
| 63 | disregarded; |
| 64 | 6. Signed a voluntary acknowledgment of paternity as |
| 65 | provided in s. 742.10(4), Florida Statutes; or |
| 66 | 7. Proclaimed himself to be the child's biological father. |
| 67 | (3) In the event the petitioner fails to make the |
| 68 | requisite showing required by this section, the court shall deny |
| 69 | the petition. |
| 70 | (4) In the event relief is granted pursuant to this |
| 71 | section, relief shall be limited to the issues of prospective |
| 72 | child support payments, past due child support payments, and |
| 73 | termination of parental rights, custody, and visitation rights. |
| 74 | The male's previous status as father continues to be in |
| 75 | existence until the order granting relief is rendered. All |
| 76 | previous lawful actions taken based on reliance on that status |
| 77 | are confirmed. This section shall not be construed to create a |
| 78 | cause of action to recover child support that was previously |
| 79 | paid. |
| 80 | (5) The duty to pay child support and other legal |
| 81 | obligations for the child shall not be suspended while the |
| 82 | petition is pending except for good cause shown. However, the |
| 83 | court may order the child support to be held in the registry of |
| 84 | the court until final determination of paternity has been made. |
| 85 | (6)(a) In an action brought pursuant to this section, if |
| 86 | the genetic test results submitted in accordance with paragraph |
| 87 | (1)(b) are provided solely by the male ordered to pay child |
| 88 | support, the court on its own motion may, and on the petition of |
| 89 | any party shall, order the child's mother, the child, and the |
| 90 | male ordered to pay child support to submit to genetic tests. |
| 91 | The court shall provide that such genetic testing be done no |
| 92 | more than 30 days after the court issues its order. |
| 93 | (b) If the mother of the child or the male ordered to pay |
| 94 | child support willfully fails to submit to genetic testing or if |
| 95 | either such party is the custodian of the child and willfully |
| 96 | fails to submit the child for testing, the court shall issue an |
| 97 | order determining the relief on the petition against the party |
| 98 | so failing to submit to genetic testing. If a party shows good |
| 99 | cause for failing to submit to genetic testing, such failure |
| 100 | shall not be considered willful. |
| 101 | (c) The party requesting genetic testing shall pay any |
| 102 | fees charged for the tests. If the custodian of the child is |
| 103 | receiving services from an administrative agency in its role as |
| 104 | an agency providing enforcement of child support orders, that |
| 105 | agency shall pay the cost of genetic testing if it requests the |
| 106 | test and may seek reimbursement for the fees from the person |
| 107 | against whom the court assesses the costs of the action. |
| 108 | (7) If relief on a petition filed in accordance with this |
| 109 | section is not granted, the court shall assess the costs of the |
| 110 | action and attorney's fees against the petitioner. |
| 111 | Section 2. This act shall take effect July 1, 2005. |