In Florida, to deny paternity you must be found to the be the father or at least accused of being the father.
Typically, paternity is established merely by the parties being married. If you are married to a woman and the woman has a baby, you are the legal father in Florida (at least initially).
If a man is not married to a woman but the woman agrees that he is the father, the woman directs the man (usually with the assistance of someone at the hospital) to sign a voluntary acknowledgement of paternity. This form, once signed creates a rebuttable presumption of paternity which can be rescinded by either the man or the woman within 60 days. Fla. Stat. Sec. 742.10(1). After 60 days, only the legal father can contest the paternity based on “fraud, duress, or material mistake of fact, with the burden of proof upon the challenger[the legal father]” Fla. Stat. Sec 742.10(4)
If mother and father are not agreed at the hospital when the voluntary acknowledgement of paternity is circulated, often, paternity is found via the simple declaration of an administrative judge in a child support proceeding. The administrative judge gets the man to admit paternity or submit to a DNA test and then declares the man “the father”. This can still be challenged in a non-administrative or a “true” court.
The court to challenge the paternity is usually the court within which the child lives. So, if the child lives in Naples, Florida, you could challenge the paternity in Collier County. You could probably still challenge the parentage order in Collier County if you lived in Naples, Florida and there was no previous court order relating to parentage in another county.
There are some things that can prevent a denial of paternity forever no matter what. If the alleged father has ever claimed the paternity for some type of legal advantage to himself, as a father, then he is forever barred from denying that paternity. For example, you cannot declare yourself the father to defeat another man’s claim of being the father and then disavow paternity. S.B. v. D.H. 736 So. 2d 766, 767 (Fla. 2d DCA 1999).
More typically, you cannot say publicly, “I’m the father” for a period of more than two years and then deny paternity. C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. 2d DCA 1999). Additionally, a woman cannot hold a man out as the father for two years and then ask the court to declare that same man not to be the father (but that alleged father can always agree that he is not the father). Barker v. Barker, 785 So. 2d 1273 (Fla. 5th DCA 2001).
In 2006 a specific statute, Fla. Stat. Sec. 742.18(1) was enacted in Florida about how a legal father (which we covered above) can challenge paternity when he finds out he is not the biological father. It requires the following:
“To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation.” Fla. Stat. Sec. 742.18(1). This means just going to the county court the child is living in or the child support order was filed in.
The petition must then be served upon the mother and, if there’s a child support order administered by the department of revenue, the department of revenue must be served as well.
This petition must include, “An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.” Fla. Stat. Sec. 742.18(1)(a). This generally means reasons for a suspicion that are confirmed by a DNA test that the next section of the statute discusses as “The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required”
If the father cannot get access to the child (there is no visitation available to apply a quick swab test available on Amazon for $ 99.99) then can just testify to that fact. Failing that, the alleged father can ask the court to have the child submit to a DNA test.
The statute then elaborates when you CAN NOT deny paternity in a Florida court:
An alleged father must be current on his child support to file this motion or his child support owed is due to a “inability for just cause to pay the delinquent child support.” Fla. Stat. Sec. 742.18(1)(c).
The child cannot have been the result of an artificial insemination while the alleged father was married to the mother. Fla. Stat. Sec. 742.18(1)(e). It obviously wouldn’t be fair to use a sperm donor as an excuse.
The alleged father cannot have done anything to prevent the biological father from asserting his rights. Fla. Stat. Sec. 742.18(1)(f).
The child in question must be under the age of 18. Fla. Stat. Sec. 742.18(1)(g).
Then the statute allows for a second test wherein the mother can refute any denial of paternity (that meets the above requirements) if she can show that the alleged father did one of the following things AFTER he learned that he was not the biological father:
“(a) Married the mother of the child while known as the reputed father in accordance with s.742.091 and voluntarily assumed the parental obligation and duty to pay child support;
(b) Acknowledged his paternity of the child in a sworn statement;
(c) Consented to be named as the child’s biological father on the child’s birth certificate;
(d) Voluntarily promised in writing to support the child and was required to support the child based on that promise;
(e) Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or
(f) Signed a voluntary acknowledgment of paternity as provided in s. 742.10(4).”Fla. Stat. Sec 742.18(3).
It’s been just a little over 10 years since this statute was enacted by the Florida State Legislature but it has proven to be very difficult to overturn paternity in the Florida courts while using this statute. The question usually becomes, “When should you have known you needed a DNA test?” The courts are split on whether you can come back after 15 years or so and ask for a DNA test. For many Florida appeals courts at some point, it is too late…or is it? The issue is extremely sensitive and deserves the attention of an experienced lawyer.
Call my family law office in Naples, Florida to learn more about the process of investigating, confirming or denying paternity under Florida law.