Senate Bill sb1456c1

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    Florida Senate - 2005                           CS for SB 1456

    By the Committee on Judiciary; and Senator Lawson





    590-1958-05

  1                      A bill to be entitled

  2         An act relating to paternity; permitting a

  3         petition to set aside a determination of

  4         paternity; specifying contents of the petition;

  5         providing standards upon which relief shall be

  6         granted; providing remedies; providing that

  7         child support obligations shall not be

  8         suspended while a petition is pending;

  9         providing for genetic testing; providing for

10         assessment of costs and attorney's fees;

11         providing an effective date.

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

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15         Section 1.  (1)  In any action in which a male is

16  required to pay child support as the father of a child, a

17  petition to set aside a determination of paternity may be made

18  at any time upon the grounds set forth in this section. Any

19  such petition shall be filed in the circuit court and shall

20  include:

21         (a)  An affidavit executed by the petitioner that newly

22  discovered evidence has come to the petitioner's knowledge

23  since the entry of judgment.

24         (b)  The results of scientific tests that are generally

25  acceptable within the scientific community to show a

26  probability of paternity, administered within 90 days prior to

27  the filing of such petition, which results indicate that the

28  male ordered to pay such child support cannot be the father of

29  the child for whom support is required. A male who suspects he

30  is not the father but does not have access to the child to

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    Florida Senate - 2005                           CS for SB 1456
    590-1958-05




 1  have genetic testing performed may file a petition requesting

 2  the court to order the child to be tested.

 3         (c)  An affidavit executed by the petitioner stating

 4  that the petitioner is current on all child support payments

 5  for the child for whom relief is sought.

 6         (2)  The court shall grant relief on a petition filed

 7  in accordance with subsection (1) upon a finding by the court

 8  of all of the following:

 9         (a)  The genetic test required in paragraph (1)(b) was

10  properly conducted.

11         (b)  The male is current on all child support payments.

12         (c)  The male ordered to pay child support has not

13  adopted the child.

14         (d)  The child was not conceived by artificial

15  insemination while the male ordered to pay child support and

16  the child's mother were in wedlock.

17         (e)  The male ordered to pay child support did not act

18  to prevent the biological father of the child from asserting

19  his paternal rights with respect to the child.

20         (f)  The male ordered to pay child support with

21  knowledge that he is not the biological father of the child

22  has not:

23         1.  Married the mother of the child and voluntarily

24  assumed the parental obligation and duty to pay child support;

25         2.  Acknowledged his paternity of the child in a sworn

26  statement;

27         3.  Been named as the child's biological father on the

28  child's birth certificate with his consent;

29         4.  Been required to support the child because of a

30  voluntary written promise;

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    Florida Senate - 2005                           CS for SB 1456
    590-1958-05




 1         5.  Received written notice from any state agency or

 2  any court directing him to submit to genetic testing which he

 3  disregarded;

 4         6.  Signed a voluntary acknowledgment of paternity as

 5  provided in section 742.10(4), Florida Statutes; or

 6         7.  Proclaimed himself to be the child's biological

 7  father.

 8         (3)  In the event the petitioner fails to make the

 9  requisite showing required by this section, the court shall

10  deny the petition.

11         (4)  In the event relief is granted pursuant to this

12  section, relief shall be limited to the issues of prospective

13  child support payments and termination of parental rights,

14  custody, and visitation rights. The male's previous status as

15  father continues to be in existence until the order granting

16  relief is rendered. All previous lawful actions taken based on

17  reliance on that status are confirmed. This section does not

18  create a cause of action to recover child support that was

19  previously paid.

20         (5)  The duty to pay child support and other legal

21  obligations for the child may not be suspended while the

22  petition is pending except for good cause shown. However, the

23  court may order the child support to be held in the registry

24  of the court until final determination of paternity has been

25  made.

26         (6)(a)  In an action brought pursuant to this section,

27  if the genetic test results submitted in accordance with

28  paragraph (1)(b) are provided solely by the male ordered to

29  pay child support, the court on its own motion may, and on the

30  petition of any party shall, order the child's mother, the

31  child, and the male ordered to pay child support to submit to

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    Florida Senate - 2005                           CS for SB 1456
    590-1958-05




 1  genetic tests. The court shall provide that such genetic

 2  testing be done no more than 30 days after the court issues

 3  its order.

 4         (b)  If the mother of the child or the male ordered to

 5  pay child support willfully fails to submit to genetic testing

 6  or if either such party is the custodian of the child and

 7  willfully fails to submit the child for testing, the court

 8  shall issue an order determining the relief on the petition

 9  against the party so failing to submit to genetic testing. If

10  a party shows good cause for failing to submit to genetic

11  testing, such failure is not considered willful.

12         (c)  The party requesting genetic testing shall pay any

13  fees charged for the tests. If the custodian of the child is

14  receiving services from an administrative agency in its role

15  as an agency providing enforcement of child support orders,

16  that agency shall pay the cost of genetic testing if it

17  requests the test and may seek reimbursement for the fees from

18  the person against whom the court assesses the costs of the

19  action.

20         (7)  If relief on a petition filed in accordance with

21  this section is not granted, the court shall assess the costs

22  of the action and attorney's fees against the petitioner.

23         Section 2.  This act shall take effect July 1, 2005.

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    Florida Senate - 2005                           CS for SB 1456
    590-1958-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1456

 3                                 

 4  The committee substitute makes the following changes to the
    underlying bill:
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    --   Provides that the process to set aside a paternity
 6       determination begins with a petition, rather than a
         motion;
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    ---  Authorizes the father of record to request that a court
 8       order genetic testing of a child that is inaccessible to
         the father of record;
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    --   Conditions relief from a prior paternity determination
10       upon a finding that the father of record is current on
         his child support obligations;
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    --   Terminates the parental rights of the father of record;
12       and

13  --   Affirms the validity of actions taken in reliance on a
         prior determination of paternity.
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