Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 438
                        Barcode 415766
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: FAV             .                    
       02/15/2006 10:30 AM         .                    
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11  The Committee on Judiciary (Campbell) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  (1)  In any action in which a male is
19  required to pay child support as the father of a child, a
20  sworn petition to set aside a determination of paternity may
21  be filed by that male at any time prior to the child's 18th
22  birthday upon the grounds set forth in this section. Any such
23  sworn petition shall be filed in the circuit court and shall
24  be served on the mother or other legal guardian or custodian.
25  The petition shall include:
26         (a)  An affidavit executed by the petitioner that newly
27  discovered evidence has come to the petitioner's knowledge
28  since establishment of the support obligation by judgment or
29  operation of law which the petitioner was not previously aware
30  of due to fraud or misrepresentation.
31         (b)  The results of scientific tests that are generally
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Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 acceptable within the scientific community to show a 2 probability of paternity, administered within 90 days prior to 3 the filing of such petition, which results indicate that the 4 male ordered to pay such child support cannot be the father of 5 the child for whom support is required or an affidavit 6 executed by the petitioner stating that he did not have access 7 to the child to have scientific testing performed prior to the 8 filing of the petition. A male who suspects he is not the 9 father but does not have access to the child to have genetic 10 testing or other applicable scientific testing performed may 11 file a petition requesting the court to order the child to be 12 tested. 13 (c) An affidavit executed by the petitioner stating 14 that the petitioner is current on all child support payments 15 for the child for whom relief is sought or that he has 16 substantially complied with his child support obligation for 17 the applicable child and that any delinquency in his child 18 support obligation for that child arose from his inability to 19 pay the delinquent child support when the delinquent child 20 support became due. 21 (2) The court shall grant relief on a petition filed 22 in accordance with subsection (1) upon a finding by the court 23 of all of the following: 24 (a) The genetic test required in paragraph (1)(b) was 25 properly conducted. 26 (b) The male ordered to pay child support is current 27 on all child support payments for the applicable child or that 28 the male ordered to pay child support has substantially 29 complied with his child support obligation for the applicable 30 child and that any delinquency in his child support obligation 31 for that child arose from his inability to pay the delinquent 2 12:31 PM 02/07/06 s0438d-ju32-e0x
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 child support when the delinquent child support became due. 2 (c) The male ordered to pay child support has not 3 adopted the child. 4 (d) The child was not conceived by artificial 5 insemination while the male ordered to pay child support and 6 the child's mother were in wedlock. 7 (e) The male ordered to pay child support did not act 8 to prevent the biological father of the child from asserting 9 his paternal rights with respect to the child. 10 (f) The male ordered to pay child support with 11 knowledge that he is not the biological father of the child 12 has not: 13 1. Married the mother of the child and voluntarily 14 assumed the parental obligation and duty to pay child support; 15 2. Acknowledged his paternity of the child in a sworn 16 statement; 17 3. Been named as the child's biological father on the 18 child's birth certificate with his consent; 19 4. Been required to support the child because of a 20 voluntary written promise; 21 5. Received written notice from any state agency or 22 any court directing him to submit to genetic testing which he 23 disregarded; or 24 6. Signed a voluntary acknowledgment of paternity as 25 provided in s. 742.10(4), Florida Statutes. 26 (3) In the event the petitioner fails to make the 27 requisite showing required by this section, the court shall 28 deny the petition. 29 (4) In the event relief is granted pursuant to this 30 section, relief shall be limited to the issues of prospective 31 child support payments and termination of parental rights, 3 12:31 PM 02/07/06 s0438d-ju32-e0x
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 custody, and visitation rights. The male's previous status as 2 father continues to be in existence until the order granting 3 relief is rendered. All previous lawful actions taken based on 4 reliance on that status are confirmed retroactively but not 5 prospectively. This section shall not be construed to create a 6 cause of action to recover child support that was previously 7 paid. 8 (5) The duty to pay child support and other legal 9 obligations for the child shall not be suspended while the 10 petition is pending except for good cause shown. However, the 11 court may order the child support to be held in the registry 12 of the court until final determination of paternity has been 13 made. 14 (6)(a) In an action brought pursuant to this section, 15 if the genetic test results, or other scientific test results, 16 submitted in accordance with paragraph (1)(b) are provided 17 solely by the male ordered to pay child support, the court on 18 its own motion may, and on the petition of any party shall, 19 order the child's mother, the child, and the male ordered to 20 pay child support to submit to genetic tests or other 21 applicable scientific tests. The court shall provide that such 22 genetic testing or other applicable scientific testing be done 23 no more than 30 days after the court issues its order. 24 (b) If the mother of the child or the male ordered to 25 pay child support willfully fails to submit to genetic testing 26 or other applicable scientific testing or if either such party 27 is the custodian of the child and willfully fails to submit 28 the child for testing, the court shall issue an order 29 determining the relief on the petition against the party so 30 failing to submit to genetic testing or other applicable 31 scientific testing. If a party shows good cause for failing to 4 12:31 PM 02/07/06 s0438d-ju32-e0x
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 submit to genetic testing or other applicable scientific 2 testing, such failure shall not be considered willful. 3 (c) The party requesting genetic testing or other 4 applicable scientific testing shall pay any fees charged for 5 the tests. If the custodian of the child is receiving services 6 from an administrative agency in its role as an agency 7 providing enforcement of child support orders, that agency 8 shall pay the cost of genetic testing if it requests the test 9 and may seek reimbursement for the fees from the person 10 against whom the court assesses the costs of the action. 11 (7) If the relief on a petition filed in accordance 12 with this section is granted, the clerk of the court shall, 13 within 30 days following final disposition, forward to the 14 Department of Health, Office of Vital Statistics, a certified 15 copy of the court order or a report of the proceedings upon a 16 form to be furnished by the department, together with 17 sufficient information to identify the original birth 18 certificate and to enable the department to prepare a new 19 birth certificate. Upon receipt of the certified copy or the 20 report, the department shall prepare and file a new birth 21 certificate that deletes the name of the male ordered to pay 22 child support as the father of the child. The certificate 23 shall bear the same file number as the original birth 24 certificate. All other items not affected by the order setting 25 aside a determination of paternity shall be copied as on the 26 original certificate, including the date of registration and 27 filing. If the child was born in a state other than Florida, 28 the clerk shall send a copy of the report or decree to the 29 appropriate birth registration authority of the state where 30 the child was born. If the relief on a petition filed in 31 accordance with this section is granted, the court may 5 12:31 PM 02/07/06 s0438d-ju32-e0x
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 consider a written request from the mother of the child to 2 change the child's surname. If the child is a minor, the court 3 shall consider whether it is in the child's best interests to 4 grant the mother's request. 5 (8) The rendition of an order granting a petition 6 filed pursuant to this section shall not affect the legitimacy 7 of a child born during a lawful marriage. 8 (9) If relief on a petition filed in accordance with 9 this section is not granted, the court shall assess the costs 10 of the action and attorney's fees against the petitioner. 11 Section 2. This act shall take effect July 1, 2006. 12 13 14 ================ T I T L E A M E N D M E N T =============== 15 And the title is amended as follows: 16 Delete everything before the enacting clause 17 18 and insert: 19 A bill to be entitled 20 An act relating to paternity; permitting a 21 sworn petition to set aside a determination of 22 paternity prior to the child's 18th birthday; 23 specifying contents of the petition; providing 24 standards upon which relief shall be granted; 25 providing remedies; providing that child 26 support obligations shall not be suspended 27 while a petition is pending; providing for 28 genetic testing or other appropriate scientific 29 testing; providing for the amendment of the 30 child's birth certificate; providing for 31 assessment of costs and attorney's fees; 6 12:31 PM 02/07/06 s0438d-ju32-e0x
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 438 Barcode 415766 1 providing an effective date. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 7 12:31 PM 02/07/06 s0438d-ju32-e0x