HB 541

1
A bill to be entitled
2An act relating to paternity; amending s. 39.001, F.S.;
3providing purposes of provisions relating to paternity;
4amending s. 39.01, F.S.; adding and revising definitions;
5amending s. 39.502, F.S.; providing for service of a
6notice of the petition for dependency; specifying
7requirements for such notice; specifying conditions under
8which an unmarried biological father may not contest the
9petition for dependency or any subsequent petition for
10termination of parental rights, unless a court orders
11otherwise; eliminating the defense of lack of notice for
12such fathers who are not identified after specified
13inquiry; amending s. 39.503, F.S.; revising requirements
14for an inquiry to be conducted when the identity or
15location of a parent is unknown and a petition for
16dependency or shelter is filed; providing that a
17prospective parent may file a sworn affidavit of
18parenthood only when the child does not have two legally
19recognized parents; providing for a prospective parent to
20seek to establish paternity in such circumstances;
21deleting provisions relating to the effect of a
22prospective parent's filing of an affidavit of parenthood
23while the child is a dependent child in certain
24circumstances; providing for a request to establish
25paternity and substitute parental rights when no parent
26objects; providing for scientific testing in certain
27circumstances; amending s. 39.801, F.S.; providing for
28service of notice of a petition for termination of
29parental rights on any known and locatable unmarried
30biological father; specifying conditions under which an
31unmarried biological father shall be precluded from
32contesting the petition for termination of parental
33rights, unless a court orders otherwise; eliminating the
34defense of lack of notice for such fathers who are not
35identified after specified inquiry; amending s. 39.803,
36F.S.; revising the requirements for an inquiry to be
37conducted when the identity or location of a parent is
38unknown and a petition for termination of parental rights
39is filed; providing an effective date.
40
41Be It Enacted by the Legislature of the State of Florida:
42
43     Section 1.  Paragraphs (o), (p), and (q) are added to
44subsection (1) of section 39.001, Florida Statutes, to read:
45     39.001  Purposes and intent; personnel standards and
46screening.-
47     (1)  PURPOSES OF CHAPTER.-The purposes of this chapter are:
48     (o)  To ensure that children have the benefit of loving and
49caring relationships with both of their parents and with both
50maternal and paternal relatives, whenever possible. To that end,
51parents shall be engaged to the fullest extent possible in the
52lives of their children, and prospective parents shall be
53afforded a prompt, full, and fair opportunity to establish
54parenthood and to assume all parental duties. However, a
55prospective parent who is an unmarried biological father, as
56defined in s. 63.032, shall have no greater rights under this
57chapter than he would have under chapter 63. Accordingly, his
58interest is inchoate until such time as he demonstrates a timely
59and full commitment to the responsibilities of parenthood.
60Because time is of the essence under this chapter and time
61limitations are to benefit the child, the parents or any
62prospective parents, including unmarried biological parents,
63must be aware that failure to comply with the specific
64requirements of this chapter may result in permanent elimination
65or termination of their rights or interests as parents or
66prospective parents, whether actual or inchoate.
67     (p)  To ensure that each child's opportunity for a
68permanent, loving, and stable family is protected under the law
69by recognizing that each child has only two legally recognized
70parents entitled to the rights and responsibilities of
71parenthood. If a third person seeks parental rights to the child
72claiming a biological connection to the child, that person must
73act expeditiously within the timeframes established by this
74chapter to assert and establish his or her parental rights.
75     (q)  To ensure that an unmarried biological father has an
76inchoate interest that acquires constitutional protection only
77when he demonstrates a timely and full commitment to the
78responsibilities of parenthood. For this reason, the state has a
79compelling interest in requiring an unmarried biological father
80to demonstrate that commitment by providing appropriate medical
81care and financial support and by establishing legal paternity
82rights in accordance with the requirements of this chapter.
83     Section 2.  Subsection (49) of section 39.01, Florida
84Statutes, is amended, subsection (76) of that section is
85redesignated as subsection (77), and a new subsection (76) is
86added to that section, to read:
87     39.01  Definitions.-When used in this chapter, unless the
88context otherwise requires:
89     (49)  "Parent" means a woman who gives birth to a child and
90a man who was married to the mother at the time of the child's
91conception or birth, who has legally adopted the child, who was
92adjudicated by the court to be the father of the child by the
93date of an advisory hearing held on a petition for termination
94of parental rights, or who has filed an affidavit of paternity
95pursuant to s. 382.013(2)(c) by the date that an advisory
96hearing is held on a petition for termination of parental rights
97whose consent to the adoption of the child would be required
98under s. 63.062(1). If a child has been legally adopted, the
99term "parent" means the adoptive mother or father of the child.
100The term does not include an individual whose parental
101relationship to the child has been legally terminated, or an
102alleged or prospective parent, unless the parental status falls
103within the terms of s. 39.503(1) or s. 63.062(1). For purposes
104of this chapter only, when the phrase "parent or legal
105custodian" is used, it refers to rights or responsibilities of
106the parent and, only if there is no living parent with intact
107parental rights, to the rights or responsibilities of the legal
108custodian who has assumed the role of the parent.
109     (76)  "Unmarried biological father" means the child's
110biological father who is not married to the child's mother at
111the time of conception or birth of the child and who, before the
112advisory hearing is held on a petition to terminate parental
113rights, has not been adjudicated or declared by a court of
114competent jurisdiction to be the legal father of the child or
115has not executed an affidavit of paternity pursuant to s.
116382.013(2)(c). There can be no unmarried biological father if
117the mother is married at the time of conception or birth of the
118child, unless otherwise ordered by the dependency court.
119     Section 3.  Subsection (6) of section 39.502, Florida
120Statutes, is amended to read:
121     39.502  Notice, process, and service.-
122     (6)(a)  It is the duty of the petitioner or moving party to
123notify all participants and parties known to the petitioner or
124moving party of all hearings subsequent to the initial hearing
125unless notice is contained in prior court orders and these
126orders were provided to the participant or party. Proof of
127notice or provision of orders may be provided by certified mail
128with a signed return receipt.
129     (b)  Notice of the petition for dependency shall be
130individually served upon any known and locatable unmarried
131biological father who is identified under oath before the court
132or who is identified by a diligent search of the Florida
133Putative Father Registry. Service of the notice of the petition
134for dependency is not required if the unmarried biological
135father signs an affidavit of nonpaternity or a consent to
136termination of his parental rights and the affidavit or consent
137is accepted by the department. The recipient of the notice may
138waive service of process by executing a waiver and acknowledging
139receipt of the notice. The notice of petition for dependency
140must specifically state that if the unmarried biological father
141desires to contest the dependency petition and assert his
142parental rights, he must, within 30 days after service:
143     1.  File a claim of paternity with the Florida Putative
144Father Registry maintained by the Office of Vital Statistics.
145     2.  Legally establish his rights to the child pursuant to
146this chapter.
147     3.  File a verified response with the court which contains
148a pledge of commitment to the child, a request for the court to
149calculate and order child support, and an agreement to submit to
150the court jurisdiction.
151     4.  Provide support for the child as calculated by the
152court under s. 61.30.
153     5.  Establish a substantial relationship with the child
154within the parameters established by court order. A father must
155develop a substantial relationship with the child by taking some
156measure of responsibility for the child and the child's future,
157and by demonstrating a full commitment to the responsibility of
158parenthood by providing financial support to the child in
159accordance with his ability, if not prevented from doing so by
160the person or authorized agency having lawful custody of the
161child, and either:
162     a.  Regularly visit the child at least monthly, when
163physically and financially able to do so and when not prevented
164from doing so by the person or authorized agency having lawful
165custody of the child; or
166     b.  Maintain regular communication with the child or with
167the person or agency having the care or custody of the child,
168when physically or financially unable to visit the child or when
169not prevented from doing so by the person or authorized agency
170having lawful custody of the child.
171     (c)  If the unmarried biological father fails to:
172     1.  Timely and properly file a verified response with the
173court which contains a pledge of commitment to the child;
174     2.  File a claim of paternity with the Florida Putative
175Father Registry maintained by the Office of Vital Statistics;
176     3.  Legally establish his paternity to the child; or
177     4.  Provide support for the child in an amount to be
178determined under s. 61.30,
179
180the unmarried biological father shall be precluded from
181contesting the petition for dependency or any subsequent
182petition for termination of parental rights, unless otherwise
183ordered by the court. The unmarried biological father is not
184entitled to any further notice of any proceedings regarding the
185child, unless otherwise ordered by the court.
186     (d)  If an unmarried biological father is not identified
187pursuant to the court inquiry in this subsection, the unmarried
188biological father's claim that he did not receive actual notice
189of the dependency proceeding is not a defense to a finding that
190the child is dependent.
191     Section 4.  Subsections (1) and (8) of section 39.503,
192Florida Statutes, are amended to read:
193     39.503  Identity or location of parent unknown; special
194procedures.-
195     (1)  If the identity or location of a parent is unknown and
196a petition for dependency or shelter is filed, the court shall
197conduct the following inquiry of the parent or legal custodian
198who is available, or, if no parent or legal custodian is
199available, of any relative or custodian of the child who is
200present at the hearing and likely to have the information:
201     (a)  Regarding the identity of any man to whom the mother
202of the child was married at any time when conception of the
203child may have occurred or at the time of the birth of the
204child.
205     (b)  Regarding the identity of any man who has filed an
206affidavit of paternity pursuant to s. 382.013(2)(c) before an
207advisory hearing is held on a petition for termination of
208parental rights.
209     (c)  Regarding the identity of any man who has adopted the
210child.
211     (d)  Regarding the identity of any man who has been
212adjudicated by a court as the father of the child before an
213advisory hearing is held on a petition for termination of
214parental rights.
215     (e)  Regarding the identity of any man whom the mother
216identified as the father under oath to a representative of the
217department.
218     (a)  Whether the mother of the child was married at the
219probable time of conception of the child or at the time of birth
220of the child.
221     (f)(b)  Whether the mother was cohabiting with a male at
222the probable time of conception of the child.
223     (g)(c)  Whether the mother has received payments or
224promises of support with respect to the child or because of her
225pregnancy from a man who claims to be the father.
226     (h)(d)  Whether the mother has named any man as the father
227on the birth certificate of the child or in connection with
228applying for or receiving public assistance.
229     (i)(e)  Whether any man has acknowledged or claimed
230paternity of the child in a jurisdiction in which the mother
231resided at the time of or since conception of the child, or in
232which the child has resided or resides.
233     (8)(a)  If the inquiry and diligent search identifies a
234prospective parent, that person must be given the opportunity to
235become a party to the proceedings by completing a sworn
236affidavit of parenthood and filing it with the court or the
237department. A prospective parent may file a sworn affidavit of
238parenthood only when the child does not have two legally
239recognized parents. If a child has two legally recognized
240parents, the prospective parent must seek to establish paternity
241under chapter 742 and substitute the prospective parent's rights
242for the rights of the other parent. The dependency court may
243consider the petition to establish paternity under chapter 742
244as part of the dependency proceedings, including entry of an
245order or judgment establishing paternity. A prospective parent
246who files a sworn affidavit of parenthood while the child is a
247dependent child but no later than at the time of or prior to the
248adjudicatory hearing in any termination of parental rights
249proceeding for the child shall be considered a parent for all
250purposes under this section unless the other parent contests the
251determination of parenthood. If the known parent contests the
252recognition of the prospective parent as a parent, the
253prospective parent shall not be recognized as a parent until
254proceedings under chapter 742 have been concluded. However, the
255prospective parent shall continue to receive notice of hearings
256as a participant pending results of the chapter 742 proceedings.
257     (b)  If neither parent objects, the court may enter an
258agreed order substituting the prospective parent's rights to the
259child for the right of the legally recognized parent, order the
260Office of Vital Statistics to amend the child's birth record,
261and order the petitioning parent to pay support for the child.
262If either parent objects to the substitution of parental rights,
263the prospective parent shall proceed to litigate parental rights
264pursuant to chapter 742. The dependency court may consider the
265petition to establish paternity under chapter 742 as part of the
266dependency proceedings, including entry of an order or judgment
267establishing paternity.
268     (c)  If the prospective parent does not file a sworn
269affidavit of parenthood or if the other parent contests the
270determination of parenthood, the court may, after considering
271the best interest of the child, order scientific testing to
272determine the maternity or paternity of the child. Test results
273are admissible in evidence and shall be weighed along with other
274evidence of the maternity or paternity of the alleged mother or
275father, unless the statistical probability of maternity or
276paternity equals or exceeds 95 percent. A statistical
277probability of maternity or paternity of 95 percent or more
278creates a rebuttable presumption, as provided in s. 90.304, that
279the alleged mother or father is the biological mother or father
280of the child. If a party fails to rebut the presumption of
281maternity or paternity which arose from the statistical
282probability of maternity or paternity of 95 percent or more, the
283court may enter a summary judgment of maternity or paternity. If
284the test results show the alleged mother or father cannot be the
285biological mother or father, the prospective parent shall no
286longer be entitled to notice of the proceedings. The court shall
287assess the cost of the scientific testing as a cost of
288litigation.
289     Section 5.  Subsection (3) of section 39.801, Florida
290Statutes, is amended to read:
291     39.801  Procedures and jurisdiction; notice; service of
292process.-
293     (3)  Before the court may terminate parental rights, in
294addition to the other requirements set forth in this part, the
295following requirements must be met:
296     (a)  Notice of the date, time, and place of the advisory
297hearing for the petition to terminate parental rights and a copy
298of the petition must be personally served upon the following
299persons, specifically notifying them that a petition has been
300filed:
301     1.  The parents of the child.
302     2.  The legal custodians of the child.
303     3.  If the parents who would be entitled to notice are dead
304or unknown, a living relative of the child, unless upon diligent
305search and inquiry no such relative can be found.
306     4.  Any person who has physical custody of the child.
307     5.  Any grandparent entitled to priority for adoption under
308s. 63.0425.
309     6.  Any prospective parent who has been identified under s.
31039.503 or s. 39.803.
311     7.  The guardian ad litem for the child or the
312representative of the guardian ad litem program, if the program
313has been appointed.
314
315The document containing the notice to respond or appear must
316contain, in type at least as large as the type in the balance of
317the document, the following or substantially similar language:
318"FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING
319CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF
320THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND
321TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE
322CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS
323NOTICE."
324     (b)  Notice of the petition for termination of parental
325rights shall be individually served upon any known and locatable
326unmarried biological father who is identified under oath before
327the court or who is identified by a diligent search of the
328Florida Putative Father Registry. Service of the notice of the
329petition for termination of parental rights is not required if
330the unmarried biological father signs an affidavit of
331nonpaternity or a consent to termination of his parental rights
332and the affidavit or consent is accepted by the department. The
333recipient of the notice may waive service of process by
334executing a waiver and acknowledging receipt of the notice. The
335notice of petition for termination of parental rights must
336specifically state that if the unmarried biological father
337desires to contest the petition and assert his parental rights,
338he must, within 30 days after service:
339     1.  File a claim of paternity with the Florida Putative
340Father Registry maintained by the Office of Vital Statistics.
341     2.  Legally establish his rights to the child pursuant to
342the provisions of this chapter.
343     3.  File a verified response with the court which contains
344a pledge of commitment to the child, a request for the court to
345calculate and order child support, and an agreement to submit to
346the court jurisdiction.
347     4.  Provide support for the child as calculated by the
348court under s. 61.30.
349     5.  Establish a substantial relationship with the child
350within the parameters established by court order. A father must
351develop a substantial relationship with the child by taking some
352measure of responsibility for the child and the child's future,
353and by demonstrating a full commitment to the responsibility of
354parenthood by providing financial support to the child in
355accordance with his ability, if not prevented from doing so by
356the person or authorized agency having lawful custody of the
357child, and either:
358     a.  Regularly visit the child at least monthly, when
359physically and financially able to do so and when not prevented
360from doing so by the person or authorized agency having lawful
361custody of the child; or
362     b.  Maintain regular communication with the child or with
363the person or agency having the care or custody of the child,
364when physically or financially unable to visit the child or when
365not prevented from doing so by the person or authorized agency
366having lawful custody of the child.
367     (c)  If the unmarried biological father fails to:
368     1.  Timely and properly file a verified response with the
369court which contains a pledge of commitment to the child;
370     2.  File a claim of paternity with the Florida Putative
371Father Registry maintained by the Office of Vital Statistics;
372     3.  Legally establish his paternity to the child; or
373     4.  Provide support for the child in an amount to be
374determined under s. 61.30,
375
376the unmarried biological father shall be precluded from
377contesting the petition for termination of parental rights,
378unless otherwise ordered by the court. The unmarried biological
379father is not entitled to any further notice of any proceedings
380regarding the child, unless otherwise ordered by the court.
381     (d)  If an unmarried biological father is not identified
382pursuant to the court inquiry under this subsection, the
383unmarried biological father's claim that he did not receive
384actual notice of the termination proceeding is not a defense to
385the petition nor grounds that the proceeding is otherwise
386defective.
387     (e)(b)  If a party required to be served with notice as
388prescribed in paragraph (a) cannot be served, notice of hearings
389must be given as prescribed by the rules of civil procedure, and
390service of process must be made as specified by law or civil
391actions.
392     (f)(c)  Notice as prescribed by this section may be waived,
393in the discretion of the judge, with regard to any person to
394whom notice must be given under this subsection if the person
395executes, before two witnesses and a notary public or other
396officer authorized to take acknowledgments, a written surrender
397of the child to a licensed child-placing agency or the
398department.
399     (g)(d)  If the person served with notice under this section
400fails to personally appear at the advisory hearing, the failure
401to personally appear shall constitute consent for termination of
402parental rights by the person given notice. If a parent appears
403for the advisory hearing and the court orders that parent to
404personally appear at the adjudicatory hearing for the petition
405for termination of parental rights, stating the date, time, and
406location of said hearing, then failure of that parent to
407personally appear at the adjudicatory hearing shall constitute
408consent for termination of parental rights.
409     Section 6.  Subsection (1) of section 39.803, Florida
410Statutes, is amended to read:
411     39.803  Identity or location of parent unknown after filing
412of termination of parental rights petition; special procedures.-
413     (1)  If the identity or location of a parent is unknown and
414a petition for termination of parental rights is filed, the
415court shall conduct the following inquiry of the parent who is
416available, or, if no parent is available, of any relative,
417caregiver, or legal custodian of the child who is present at the
418hearing and likely to have the information:
419     (a)  Regarding the identity of any man to whom the mother
420of the child was married at any time when conception of the
421child may have occurred or at the time of the birth of the
422child.
423     (b)  Regarding the identity of any man who has filed an
424affidavit of paternity pursuant to s. 382.013(2)(c) before an
425advisory hearing is held on a petition for termination of
426parental rights.
427     (c)  Regarding the identity of any man who has adopted the
428child.
429     (d)  Regarding the identity of any man who has been
430adjudicated by a court as the father of the child before an
431advisory hearing is held on a petition for termination of
432parental rights.
433     (e)  Regarding the identity of any man whom the mother
434identified as the father under oath to a representative of the
435department.
436     (a)  Whether the mother of the child was married at the
437probable time of conception of the child or at the time of birth
438of the child.
439     (f)(b)  Whether the mother was cohabiting with a male at
440the probable time of conception of the child.
441     (g)(c)  Whether the mother has received payments or
442promises of support with respect to the child or because of her
443pregnancy from a man who claims to be the father.
444     (h)(d)  Whether the mother has named any man as the father
445on the birth certificate of the child or in connection with
446applying for or receiving public assistance.
447     (i)(e)  Whether any man has acknowledged or claimed
448paternity of the child in a jurisdiction in which the mother
449resided at the time of or since conception of the child, or in
450which the child has resided or resides.
451     Section 7.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.