1 | A bill to be entitled |
2 | An act relating to the welfare of children; permitting a |
3 | petition to set aside a determination of paternity or |
4 | terminate a child support obligation; specifying contents |
5 | of the petition; providing standards upon which relief |
6 | shall be granted; providing remedies; prohibiting the |
7 | suspension of child support obligations while a petition |
8 | is pending; providing for scientific testing; providing |
9 | for the amendment of the child's birth certificate; |
10 | providing for assessment of costs and attorney's fees; |
11 | amending s. 63.054, F.S.; requiring a petitioner in a |
12 | proceeding for termination of parental rights to provide |
13 | notice to the Office of Vital Statistics of the Department |
14 | of Health; prohibiting the office from recording a claim |
15 | of paternity after the date that a termination of parental |
16 | rights is filed; requiring the department to remove a |
17 | registrant's name from the Florida Putative Father |
18 | Registry upon a finding that the registrant has no |
19 | parental rights; amending s. 63.062, F.S.; modifying |
20 | consent required for adoption; amending s. 63.182, F.S.; |
21 | providing that the interest that entitles a person to |
22 | notice of an adoption must be direct, financial, and |
23 | immediate; providing an exception; providing that a |
24 | showing of an indirect, inconsequential, or contingent |
25 | interest is wholly inadequate; providing construction and |
26 | applicability; providing an effective date. |
27 |
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28 | Be It Enacted by the Legislature of the State of Florida: |
29 |
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30 | Section 1. (1) This section establishes circumstances |
31 | under which a male may disestablish paternity or terminate a |
32 | child support obligation when the male is not the biological |
33 | father of the child. To disestablish paternity or terminate a |
34 | child support obligation, the male must file a petition in the |
35 | circuit court having jurisdiction over the child support |
36 | obligation. The petition must be served on the mother or other |
37 | legal guardian or custodian of the child. If the child support |
38 | obligation was determined administratively and has not been |
39 | ratified by a court, then the petition must be filed in the |
40 | circuit court where the mother or legal guardian or custodian |
41 | resides. Such a petition must be served on the Department of |
42 | Revenue and on the mother or legal guardian or custodian. If the |
43 | mother or legal guardian or custodian no longer resides in the |
44 | state, the petition may be filed in the circuit court in the |
45 | county where the petitioner resides. The petition must include: |
46 | (a) An affidavit executed by the petitioner that newly |
47 | discovered evidence relating to the paternity of the child has |
48 | come to the petitioner's knowledge since the initial paternity |
49 | determination or establishment of a child support obligation. |
50 | (b) The results of scientific tests that are generally |
51 | acceptable within the scientific community to show a probability |
52 | of paternity, administered within 90 days prior to the filing of |
53 | such petition, which results indicate that the male ordered to |
54 | pay such child support cannot be the father of the child for |
55 | whom support is required, or an affidavit executed by the |
56 | petitioner stating that he did not have access to the child to |
57 | have scientific testing performed prior to the filing of the |
58 | petition. A male who suspects he is not the father but does not |
59 | have access to the child to have scientific testing performed |
60 | may file a petition requesting the court to order the child to |
61 | be tested. |
62 | (c) An affidavit executed by the petitioner stating that |
63 | the petitioner is current on all child support payments for the |
64 | child for whom relief is sought or that he has substantially |
65 | complied with his child support obligation for the applicable |
66 | child and that any delinquency in his child support obligation |
67 | for that child arose from his inability for just cause to pay |
68 | the delinquent child support when the delinquent child support |
69 | became due. |
70 | (2) The court shall grant relief on a petition filed in |
71 | accordance with subsection (1) upon a finding by the court of |
72 | all of the following: |
73 | (a) Newly discovered evidence relating to the paternity of |
74 | the child has come to the petitioner's knowledge since the |
75 | initial paternity determination or establishment of a child |
76 | support obligation. |
77 | (b) The scientific test required in paragraph (1)(b) was |
78 | properly conducted. |
79 | (c) The male ordered to pay child support is current on |
80 | all child support payments for the applicable child or that the |
81 | male ordered to pay child support has substantially complied |
82 | with his child support obligation for the applicable child and |
83 | that any delinquency in his child support obligation for that |
84 | child arose from his inability for just cause to pay the |
85 | delinquent child support when the delinquent child support |
86 | became due. |
87 | (d) The male ordered to pay child support has not adopted |
88 | the child. |
89 | (e) The child was not conceived by artificial insemination |
90 | while the male ordered to pay child support and the child's |
91 | mother were in wedlock. |
92 | (f) The male ordered to pay child support did not act to |
93 | prevent the biological father of the child from asserting his |
94 | paternal rights with respect to the child. |
95 | (g) The child was younger than 18 years of age when the |
96 | petition was filed. |
97 | (3) Notwithstanding subsection (2), a court shall not set |
98 | aside the paternity determination or child support order if the |
99 | male engaged in the following conduct after learning that he is |
100 | not the biological father of the child: |
101 | 1. Married the mother of the child while known as the |
102 | reputed father in accordance with s. 742.091, Florida Statutes, |
103 | and voluntarily assumed the parental obligation and duty to pay |
104 | child support; |
105 | 2. Acknowledged his paternity of the child in a sworn |
106 | statement; |
107 | 3. Consented to be named as the child's biological father |
108 | on the child's birth certificate; |
109 | 4. Voluntarily promised in writing to support the child |
110 | and was required to support the child based on that promise; |
111 | 5. Received written notice from any state agency or any |
112 | court directing him to submit to scientific testing which he |
113 | disregarded; or |
114 | 6. Signed a voluntary acknowledgment of paternity as |
115 | provided in s. 742.10(4), Florida Statutes. |
116 | (4) In the event the petitioner fails to make the |
117 | requisite showing required by this section, the court shall deny |
118 | the petition. |
119 | (5) In the event relief is granted pursuant to this |
120 | section, relief shall be limited to the issues of prospective |
121 | child support payments and termination of parental rights, |
122 | custody, and visitation rights. The male's previous status as |
123 | father continues to be in existence until the order granting |
124 | relief is rendered. All previous lawful actions taken based on |
125 | reliance on that status are confirmed retroactively but not |
126 | prospectively. This section shall not be construed to create a |
127 | cause of action to recover child support that was previously |
128 | paid. |
129 | (6) The duty to pay child support and other legal |
130 | obligations for the child shall not be suspended while the |
131 | petition is pending except for good cause shown. However, the |
132 | court may order the child support to be held in the registry of |
133 | the court until final determination of paternity has been made. |
134 | (7)(a) In an action brought pursuant to this section, if |
135 | the scientific test results submitted in accordance with |
136 | paragraph (1)(b) are provided solely by the male ordered to pay |
137 | child support, the court on its own motion may, and on the |
138 | petition of any party shall, order the child and the male |
139 | ordered to pay child support to submit to applicable scientific |
140 | tests. The court shall provide that such scientific testing be |
141 | done no more than 30 days after the court issues its order. |
142 | (b) If the male ordered to pay child support willfully |
143 | fails to submit to scientific testing or if the mother or legal |
144 | guardian or custodian of the child willfully fails to submit the |
145 | child for testing, the court shall issue an order determining |
146 | the relief on the petition against the party so failing to |
147 | submit to scientific testing. If a party shows good cause for |
148 | failing to submit to testing, such failure shall not be |
149 | considered willful. Nothing in this paragraph shall prevent the |
150 | child from reestablishing paternity under s. 742.10, Florida |
151 | Statutes. |
152 | (c) The party requesting applicable scientific testing |
153 | shall pay any fees charged for the tests. If the custodian of |
154 | the child is receiving services from an administrative agency in |
155 | its role as an agency providing enforcement of child support |
156 | orders, that agency shall pay the cost of the testing if it |
157 | requests the test and may seek reimbursement for the fees from |
158 | the person against whom the court assesses the costs of the |
159 | action. |
160 | (8) If the relief on a petition filed in accordance with |
161 | this section is granted, the clerk of the court shall, within 30 |
162 | days following final disposition, forward to the Office of Vital |
163 | Statistics of the Department of Health a certified copy of the |
164 | court order or a report of the proceedings upon a form to be |
165 | furnished by the department, together with sufficient |
166 | information to identify the original birth certificate and to |
167 | enable the department to prepare a new birth certificate. Upon |
168 | receipt of the certified copy or the report, the department |
169 | shall prepare and file a new birth certificate that deletes the |
170 | name of the male ordered to pay child support as the father of |
171 | the child. The certificate shall bear the same file number as |
172 | the original birth certificate. All other items not affected by |
173 | the order setting aside a determination of paternity shall be |
174 | copied as on the original certificate, including the date of |
175 | registration and filing. If the child was born in a state other |
176 | than Florida, the clerk shall send a copy of the report or |
177 | decree to the appropriate birth registration authority of the |
178 | state where the child was born. If the relief on a petition |
179 | filed in accordance with this section is granted and the mother |
180 | or legal guardian or custodian requests that the court change |
181 | the child's surname, the court may change the child's surname. |
182 | If the child is a minor, the court shall consider whether it is |
183 | in the child's best interests to grant the request to change the |
184 | child's surname. |
185 | (9) The rendition of an order granting a petition filed |
186 | pursuant to this section shall not affect the legitimacy of a |
187 | child born during a lawful marriage. |
188 | (10) If relief on a petition filed in accordance with this |
189 | section is not granted, the court shall assess the costs of the |
190 | action and attorney's fees against the petitioner. |
191 | (11) Nothing in this section precludes an individual from |
192 | seeking relief from a final judgment, decree, order, or |
193 | proceeding pursuant to Rule 1.540, Florida Rules of Civil |
194 | Procedure, or from challenging a paternity determination |
195 | pursuant to s. 742.10(4), Florida Statutes. |
196 | Section 2. Subsections (1) and (5) of section 63.054, |
197 | Florida Statutes, are amended to read: |
198 | 63.054 Actions required by an unmarried biological father |
199 | to establish parental rights; Florida Putative Father |
200 | Registry.-- |
201 | (1) In order to preserve the right to notice and consent |
202 | to an adoption under this chapter, an unmarried biological |
203 | father must, as the "registrant," file a notarized claim of |
204 | paternity form with the Florida Putative Father Registry |
205 | maintained by the Office of Vital Statistics of the Department |
206 | of Health and shall include therein confirmation of his |
207 | willingness and intent to support the child for whom paternity |
208 | is claimed in accordance with state law. The claim of paternity |
209 | may be filed at any time prior to the child's birth, but a claim |
210 | of paternity may not be filed after the date a petition is filed |
211 | for termination of parental rights. In each proceeding for |
212 | termination of parental rights, the petitioner shall submit to |
213 | the Office of Vital Statistics of the Department of Health a |
214 | copy of the petition for termination of parental rights. The |
215 | Office of Vital Statistics of the Department of Health shall not |
216 | record a claim of paternity after the date that a petition for |
217 | termination of parental rights is filed. |
218 | (5) The registrant may, at any time prior to the birth of |
219 | the child for whom paternity is claimed, execute a notarized |
220 | written revocation of the claim of paternity previously filed |
221 | with the Florida Putative Father Registry, and upon receipt of |
222 | such revocation, the claim of paternity shall be deemed null and |
223 | void. If a court determines that a registrant is not the father |
224 | of the minor or has no parental rights, the court shall order |
225 | the Department of Health to remove the registrant's name from |
226 | the registry. |
227 | Section 3. Subsection (4) of section 63.062, Florida |
228 | Statutes, is amended to read: |
229 | 63.062 Persons required to consent to adoption; affidavit |
230 | of nonpaternity; waiver of venue.-- |
231 | (4) Any person whose consent is required under paragraph |
232 | (1)(b), or any other man, paragraphs (1)(c)-(e) may execute an |
233 | irrevocable affidavit of nonpaternity in lieu of a consent under |
234 | this section and by doing so waives notice to all court |
235 | proceedings after the date of execution. An affidavit of |
236 | nonpaternity must be executed as provided in s. 63.082. The |
237 | affidavit of nonpaternity may be executed prior to the birth of |
238 | the child. The person executing the affidavit must receive |
239 | disclosure under s. 63.085 prior to signing the affidavit. |
240 | Section 4. Section 63.182, Florida Statutes, is amended to |
241 | read: |
242 | 63.182 Statute of repose.-- |
243 | (1) Notwithstanding s. 95.031 or s. 95.11 or any other |
244 | statute, an action or proceeding of any kind to vacate, set |
245 | aside, or otherwise nullify a judgment of adoption or an |
246 | underlying judgment terminating parental rights on any ground |
247 | may not be filed more than 1 year after entry of the judgment |
248 | terminating parental rights. |
249 | (2)(a) Except for the specific persons expressly entitled |
250 | to be given notice of an adoption in accordance with this |
251 | chapter, the interest that entitles a person to notice of an |
252 | adoption must be direct, financial, and immediate and the person |
253 | must show that he or she will gain or lose by the direct legal |
254 | operation and effect of the judgment. A showing of an indirect, |
255 | inconsequential, or contingent interest is wholly inadequate and |
256 | a person with this indirect interest lacks standing to set aside |
257 | a judgment of adoption. |
258 | (b) This subsection is remedial and shall apply to all |
259 | adoptions, including those in which a judgment of adoption has |
260 | already been entered. |
261 | Section 5. This act shall take effect upon becoming a law. |