Florida Senate - 2006 COMMITTEE AMENDMENT
Bill No. SB 438
Barcode 415766
CHAMBER ACTION
Senate House
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02/15/2006 10:30 AM .
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11 The Committee on Judiciary (Campbell) recommended the
12 following amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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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
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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,
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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
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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
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Florida Senate - 2006 COMMITTEE AMENDMENT
Bill No. SB 438
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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.
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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
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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;
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Florida Senate - 2006 COMMITTEE AMENDMENT
Bill No. SB 438
Barcode 415766
1 providing an effective date.
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