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