| 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 or terminate a child |
| 8 | support obligation; specifying contents of the petition; |
| 9 | providing standards upon which relief shall be granted; |
| 10 | providing remedies; providing that child support |
| 11 | obligations shall not be suspended while a petition is |
| 12 | pending; providing for scientific testing; providing for |
| 13 | the amendment of the child's birth certificate; providing |
| 14 | for assessment of costs and attorney's fees; repealing |
| 15 | Rule 1.540, Florida Rules of Civil Procedure, relating to |
| 16 | relief from judgment, decrees, or orders; providing a |
| 17 | contingent effective date. |
| 18 |
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| 19 | Be It Enacted by the Legislature of the State of Florida: |
| 20 |
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| 21 | Section 1. (1) This section establishes circumstances |
| 22 | under which a male may disestablish paternity or terminate a |
| 23 | child support obligation when the male is not the biological |
| 24 | father of the child. To disestablish paternity or terminate a |
| 25 | child support obligation, the male must file a petition in the |
| 26 | circuit court having jurisdiction over the child support |
| 27 | obligation. The petition must be served on the mother or other |
| 28 | legal guardian or custodian of the child. If the child support |
| 29 | obligation was determined administratively and has not been |
| 30 | ratified by a court, then the petition must be filed in the |
| 31 | circuit court in the county where the mother or legal guardian |
| 32 | or custodian resides. Such a petition must be served on the |
| 33 | Department of Revenue and on the mother or legal guardian or |
| 34 | custodian. In the event that the mother or legal guardian or |
| 35 | custodian no longer resides in the state, the petition may be |
| 36 | filed in the circuit court in the county where the petitioner |
| 37 | resides. The petition must include: |
| 38 | (a) An affidavit executed by the petitioner that newly |
| 39 | discovered evidence relating to the paternity of the child has |
| 40 | come to the petitioner's knowledge since the initial paternity |
| 41 | determination or establishment of a child support obligation. |
| 42 | (b) The results of scientific tests that are generally |
| 43 | acceptable within the scientific community to show a probability |
| 44 | of paternity, administered within 90 days prior to the filing of |
| 45 | such petition, which results indicate that the male ordered to |
| 46 | pay such child support cannot be the father of the child for |
| 47 | whom support is required or an affidavit executed by the |
| 48 | petitioner stating that he did not have access to the child to |
| 49 | have scientific testing performed prior to the filing of the |
| 50 | petition. A male who suspects he is not the father but does not |
| 51 | have access to the child to have scientific testing performed |
| 52 | may file a petition requesting the court to order the child to |
| 53 | be tested. |
| 54 | (c) An affidavit executed by the petitioner stating that |
| 55 | the petitioner is current on all child support payments for the |
| 56 | child for whom relief is sought or that he has substantially |
| 57 | complied with his child support obligation for the applicable |
| 58 | child and that any delinquency in his child support obligation |
| 59 | for that child arose from his inability for just cause to pay |
| 60 | the delinquent child support when the delinquent child support |
| 61 | became due. |
| 62 | (2) The court shall grant relief on a petition filed in |
| 63 | accordance with subsection (1) upon a finding by the court of |
| 64 | all of the following: |
| 65 | (a) Newly discovered evidence relating to the paternity of |
| 66 | the child has come to the petitioner's knowledge since the |
| 67 | initial paternity determination or establishment of a child |
| 68 | support obligation. |
| 69 | (b) The scientific test required in paragraph (1)(b) was |
| 70 | properly conducted. |
| 71 | (c) The male ordered to pay child support is current on |
| 72 | all child support payments for the applicable child or that the |
| 73 | male ordered to pay child support has substantially complied |
| 74 | with his child support obligation for the applicable child and |
| 75 | that any delinquency in his child support obligation for that |
| 76 | child arose from his inability for just cause to pay the |
| 77 | delinquent child support when the delinquent child support |
| 78 | became due. |
| 79 | (d) The male ordered to pay child support has not adopted |
| 80 | the child. |
| 81 | (e) The child was not conceived by artificial insemination |
| 82 | while the male ordered to pay child support and the child's |
| 83 | mother were in wedlock. |
| 84 | (f) The male ordered to pay child support did not act to |
| 85 | prevent the biological father of the child from asserting his |
| 86 | paternal rights with respect to the child. |
| 87 | (g) The child had not yet reached his or her 18th birthday |
| 88 | when the petition was filed. |
| 89 | (3) Notwithstanding subsection (2), a court shall not set |
| 90 | aside the paternity determination or child support order if the |
| 91 | male engaged in the following conduct after learning that he is |
| 92 | not the biological father of the child: |
| 93 | (a) Married the mother of the child while known as the |
| 94 | putative father in accordance with s. 742.091, Florida Statutes, |
| 95 | and voluntarily assumed the parental obligation and duty to pay |
| 96 | child support; |
| 97 | (b) Acknowledged his paternity of the child in a sworn |
| 98 | statement; |
| 99 | (c) Consented to be named as the child's biological father |
| 100 | on the child's birth certificate; |
| 101 | (d) Voluntarily promised in writing to support the child |
| 102 | and was required to support the child based on that promise; |
| 103 | (e) Received and disregarded written notice from any state |
| 104 | agency or any court directing him to submit to scientific |
| 105 | testing; or |
| 106 | (f) Signed a voluntary acknowledgment of paternity as |
| 107 | provided in s. 742.10(4), Florida Statutes. |
| 108 | (4) In the event the petitioner fails to make the |
| 109 | requisite showing required by this section, the court shall deny |
| 110 | the petition. |
| 111 | (5) In the event relief is granted pursuant to this |
| 112 | section, relief shall be limited to the issues of prospective |
| 113 | child support payments and termination of parental rights, |
| 114 | custody, and visitation rights. The male's previous status as |
| 115 | father continues to be in existence until the order granting |
| 116 | relief is rendered. All previous lawful actions taken based on |
| 117 | reliance on that status are confirmed retroactively but not |
| 118 | prospectively. This section shall not be construed to create a |
| 119 | cause of action to recover child support that was previously |
| 120 | paid. |
| 121 | (6) The duty to pay child support and other legal |
| 122 | obligations for the child shall not be suspended while the |
| 123 | petition is pending except for good cause shown. However, the |
| 124 | court may order the child support to be held in the registry of |
| 125 | the court until final determination of paternity has been made. |
| 126 | (7)(a) In an action brought pursuant to this section, if |
| 127 | the scientific test results submitted in accordance with |
| 128 | paragraph (1)(b) are provided solely by the male ordered to pay |
| 129 | child support, the court on its own motion may, and on the |
| 130 | petition of any party shall, order the child and the male |
| 131 | ordered to pay child support to submit to applicable scientific |
| 132 | tests. The court shall provide that such scientific testing be |
| 133 | done no more than 30 days after the court issues its order. |
| 134 | (b) If the male ordered to pay child support willfully |
| 135 | fails to submit to scientific testing or if the mother or legal |
| 136 | guardian or custodian of the child willfully fails to submit the |
| 137 | child for testing, the court shall issue an order determining |
| 138 | the relief on the petition against the party so failing to |
| 139 | submit to scientific testing. If a party shows good cause for |
| 140 | failing to submit to testing, such failure shall not be |
| 141 | considered willful. Nothing in this paragraph shall prevent the |
| 142 | child from reestablishing paternity under s. 742.10, Florida |
| 143 | Statutes. |
| 144 | (c) The party requesting applicable scientific testing |
| 145 | shall pay any fees charged for the testing. If the custodian of |
| 146 | the child is receiving services from an administrative agency in |
| 147 | its role as an agency providing enforcement of child support |
| 148 | orders, that agency shall pay the cost of the testing if it |
| 149 | requests the testing and may seek reimbursement for the fees |
| 150 | from the person against whom the court assesses the costs of the |
| 151 | action. |
| 152 | (8) If relief on a petition filed in accordance with this |
| 153 | section is granted, the clerk of the court shall, within 30 days |
| 154 | following final disposition, forward to the Office of Vital |
| 155 | Statistics of the Department of Health a certified copy of the |
| 156 | court order or a report of the proceedings upon a form to be |
| 157 | furnished by the department, together with sufficient |
| 158 | information to identify the original birth certificate and to |
| 159 | enable the department to prepare a new birth certificate. Upon |
| 160 | receipt of the certified copy or the report, the department |
| 161 | shall prepare and file a new birth certificate that deletes the |
| 162 | name of the male ordered to pay child support as the father of |
| 163 | the child. The certificate shall bear the same file number as |
| 164 | the original birth certificate. All other items not affected by |
| 165 | the order setting aside a determination of paternity shall be |
| 166 | copied as on the original certificate, including the date of |
| 167 | registration and filing. If the child was born in a state other |
| 168 | than Florida, the clerk shall send a copy of the report or |
| 169 | decree to the appropriate birth registration authority of the |
| 170 | state where the child was born. If the relief on a petition |
| 171 | filed in accordance with this section is granted and the mother |
| 172 | or legal guardian or custodian requests that the court change |
| 173 | the child's surname, the court may change the child's surname. |
| 174 | If the child is a minor, the court shall consider whether it is |
| 175 | in the child's best interests to grant the request to change the |
| 176 | child's surname. |
| 177 | (9) The rendition of an order granting a petition filed |
| 178 | pursuant to this section shall not affect the legitimacy of a |
| 179 | child born during a lawful marriage. |
| 180 | (10) If relief on a petition filed in accordance with this |
| 181 | section is not granted, the court shall assess the costs of the |
| 182 | action and attorney's fees against the petitioner. |
| 183 | (11) Nothing in this section precludes an individual from |
| 184 | seeking relief from a final judgment, decree, or order or from |
| 185 | challenging a paternity determination as otherwise provided by |
| 186 | law. |
| 187 | Section 2. Rule 1.540, Florida Rules of Civil Procedure, |
| 188 | is repealed. |
| 189 | Section 3. This act shall take effect July 1, 2006, except |
| 190 | that section 2 of this act shall take effect only if this act is |
| 191 | passed by a two-thirds vote of the membership of each house of |
| 192 | the Legislature. |