Establishing Paternity Rights & Parent Responsibilities:
Florida Fathers of Children Born out of Wedlock
The 2009 Florida Statutes
Title XLIII
DOMESTIC RELATIONS
CHAPTER 742
DETERMINATION OF PARENTAGE
(Selected Statutes)
742.011 Determination of paternity proceedings; jurisdiction.--Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.
History.--s. 1, ch. 26949, 1951; s. 5, ch. 75-166; s. 13, ch. 83-214; s. 150, ch. 86-220.
742.021 Venue, process, complaint.-
(1) The proceedings must be in the circuit court of the county where the plaintiff resides or the county where the defendant resides.
(2) The complaint shall assert sufficient facts charging the paternity of the child. Upon filing of a complaint seeking to determine paternity, the clerk of court shall issue a notice to each petitioner and to each respondent or defendant along with service of the petition. The notice must be in substantially the following form:
In order to preserve the right to notice and consent to the adoption of the child, an unmarried biological father must, as the "registrant," file a notarized claim of paternity form with the Florida Putative Father Registry maintained by the Office of Vital Statistics of the Department of Health which includes confirmation of his willingness and intent to support the child for whom paternity is claimed in accordance with state law. The claim of paternity may be filed at any time before the child's birth, but a claim of paternity may not be filed after the date a petition is filed for termination of parental rights.
(3) Process served on the defendant must require the defendant to file written defenses to the complaint in the same manner as suits in chancery. Upon application and proof under oath, the court may issue a writ of ne exeat against the defendant on such terms and conditions and conditioned upon bond in such amount as the court may determine.
History.--s. 2, ch. 26949, 1951; s. 151, ch. 86-220; s. 24, ch. 2008-151.
742.031 Hearings; court orders for support, hospital expenses, and attorney's fee.-
(1) Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to persons, in addition to the parties involved and their counsel, as the judge in his or her discretion may direct. The court shall determine the issues of paternity of the child and the ability of the parents to support the child. Each party's social security number shall be recorded in the file containing the adjudication of paternity. If the court finds that the alleged father is the father of the child, it shall so order. If appropriate, the court shall order the father to pay the complainant, her guardian, or any other person assuming responsibility for the child moneys sufficient to pay reasonable attorney's fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child and to pay all costs of the proceeding. Bills for pregnancy, childbirth, and scientific testing are admissible as evidence without requiring third-party foundation testimony, and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child. The court shall order either or both parents owing a duty of support to the child to pay support pursuant to s. 61.30. The court shall issue, upon motion by a party, a temporary order requiring child support pursuant to s. 61.30 pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence. The court may also make a determination of an appropriate parenting plan, including a time-sharing schedule, in accordance with chapter 61.
(2) If a judgment of paternity contains only a child support award with no parenting plan or time-sharing schedule, the obligee parent shall receive all of the time-sharing and sole parental responsibility without prejudice to the obligor parent. If a paternity judgment contains no such provisions, the mother shall be presumed to have all of the time-sharing and sole parental responsibility.
(3) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
(4)(a) A court may, upon good cause shown and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.
(b) The modification of the temporary support order may be retroactive to the date of the initial entry of the temporary support order; to the date of filing of the initial petition for dissolution of marriage, petition for support, petition determining paternity, or supplemental petition for modification; or to a date prescribed in s. 61.14(1)(a) or s. 61.30(11)(c) or (17), as applicable.
History.--s. 3, ch. 26949, 1951; s. 1, ch. 59-45; s. 152, ch. 86-220; s. 18, ch. 88-176; s. 6, ch. 91-246; s. 1060, ch. 97-102; s. 68, ch. 97-170; s. 2, ch. 2004-47; s. 36, ch. 2008-61.
742.032 Filing of location information.-
(1) Beginning July 1, 1997, each party to any paternity or child support proceeding must file with the tribunal, as defined in chapter 88 and State Case Registry as defined in chapter 61 upon entry of an order, and update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver's license number, and name, address, and telephone number of employer. Beginning October 1, 1998, each party to any paternity or child support proceeding in a non-Title IV-D case shall meet the above requirements for updating the tribunal and State Case Registry.
(2) Beginning July 1, 1997, in any subsequent Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry under subsection (1). Beginning October 1, 1998, in any subsequent non-Title IV-D child support enforcement action between the parties, the same requirements for service shall apply.
(3) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
History.--s. 69, ch. 97-170; s. 39, ch. 98-397.
742.045 Attorney's fees, suit money, and costs.--The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. An application for attorney's fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. The court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name. In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor's ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).
History.--s. 7, ch. 91-246; s. 7, ch. 93-188; s. 17, ch. 93-208; s. 1, ch. 95-151; s. 1061, ch. 97-102.
742.06 Jurisdiction retained for future orders.--The court shall retain jurisdiction of the cause for the purpose of entering such other and further orders as changing circumstances of the parties may in justice and equity require.
History.--s. 5, ch. 26949, 1951.
742.07 Effect of adoption.--Upon the adoption of a child, for whom support has been ordered, by some person other than the father, the liability of the father for the support of the child shall be terminated.
History.--s. 6, ch. 26949, 1951.
742.08 Default of support payments.--Upon default in payment of any moneys ordered by the court to be paid, the court may enter a judgment for the amount in default, plus interest, administrative costs, filing fees, and other expenses incurred by the clerk of the circuit court which shall be a lien upon all property of the defendant both real and personal. Costs and fees shall be assessed only after the court makes a determination of the nonprevailing party's ability to pay such costs and fees. In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor's ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1). Willful failure to comply with an order of the court shall be deemed a contempt of the court entering the order and shall be punished as such. The court may require bond of the defendant for the faithful performance of his or her obligation under the order of the court in such amount and upon such conditions as the court shall direct.
History.--s. 7, ch. 26949, 1951; s. 27, ch. 92-138; s. 18, ch. 93-208; s. 1062, ch. 97-102; s. 281, ch. 99-8.
742.091 Marriage of parents.--If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in s. 742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.
History.--s. 1, ch. 57-267; s. 6, ch. 75-166; s. 4, ch. 90-139.
742.10 Establishment of paternity for children born out of wedlock.-
(1) Except as provided in chapters 39 and 63, this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. If the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers' compensation or similar compensation programs; if an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court; if an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.013 or s. 382.016 is executed by both parties; or if paternity is adjudicated by the Department of Revenue as provided in s. 409.256, such adjudication, affidavit, or acknowledgment constitutes the establishment of paternity for purposes of this chapter. If an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier. Both parents must provide their social security numbers on any acknowledgment of paternity, consent affidavit, or stipulation of paternity. Except for affidavits under seal pursuant to ss. 382.015 and 382.016, the Office of Vital Statistics shall provide certified copies of affidavits to the Title IV-D agency upon request.
(2) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
(3) The department shall adopt rules which establish the information which must be provided to an individual prior to execution of an affidavit or voluntary acknowledgment of paternity. The information shall explain the alternatives to, the legal consequences of, and the rights, including, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from acknowledging paternity.
(4) After the 60-day period referred to in subsection (1), a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment may not be suspended during the challenge, except upon a finding of good cause by the court.
(5) Judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity.
History.--s. 9, ch. 26949, 1951; s. 10, ch. 27991, 1953; s. 7, ch. 75-166; s. 153, ch. 86-220; s. 28, ch. 92-138; s. 21, ch. 93-208; s. 8, ch. 94-318; s. 70, ch. 97-170; s. 114, ch. 97-237; s. 41, ch. 99-397; s. 22, ch. 2001-53; s. 19, ch. 2004-334; s. 39, ch. 2005-39; s. 25, ch. 2008-151.
742.108 Criminal penalties for false statements of paternity.--Notwithstanding any other provision of law, any person who knowingly and willfully provides false information to the sheriff's office, other law enforcement agency, or governmental agency, or under oath regarding the paternity of a child in conjunction with an application for, or the receipt of, public assistance for a dependent child commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, in addition to remaining subject to any other civil or criminal penalties for perjury or making false statements which are applicable under other provisions of law.
History.--s. 6, ch. 96-215.
742.12 Scientific testing to determine paternity.-
(1) In any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
(2) In any proceeding to establish paternity, the court may, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
(3) The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented. Nothing in this paragraph prohibits a party from calling an outside expert witness to refute or support the testing procedure or results, or the mathematical theory on which they are based. Upon the entry of the order for scientific testing, the court must inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.
(4) Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95 percent or more, the court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.
(5) Subject to the limitations in subsection (3), if the test results or the expert analysis of the inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.
(6) Verified documentation of the chain of custody of the blood or other specimens is competent evidence to establish the chain of custody.
(7) The fees and costs for scientific tests shall be paid by the parties in proportions and at times determined by the court unless the parties reach a stipulated agreement which is adopted by the court.
History.--s. 154, ch. 86-220; s. 10, ch. 89-183; s. 10, ch. 94-318; s. 72, ch. 97-170; s. 54, ch. 2001-158.
742.18 Disestablishment of paternity or termination of child support obligation.-
(1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. 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. The petition must be served on the mother or other legal guardian or custodian of the child. If the child support obligation was determined administratively and has not been ratified by a court, then the petition must be filed in the circuit court where the mother or legal guardian or custodian resides. Such a petition must be served on the Department of Revenue and on the mother or legal guardian or custodian. If the mother or legal guardian or custodian no longer resides in the state, the petition may be filed in the circuit court in the county where the petitioner resides. The petition must include:
(a) 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.
(b) 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, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.
(2) The court shall grant relief on a petition filed in accordance with subsection (1) upon a finding by the court of all of the following:
(a) 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.
(b) The scientific test required in paragraph (1)(b) was properly conducted.
(c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.
(d) The male ordered to pay child support has not adopted the child.
(e) The child was not conceived by artificial insemination while the male ordered to pay child support and the child's mother were in wedlock.
(f) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child.
(g) The child was younger than 18 years of age when the petition was filed.
(3) Notwithstanding subsection (2), a court shall not set aside the paternity determination or child support order if the male engaged in the following conduct after learning that he is not the biological father of the child:
(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).
(4) In the event the petitioner fails to make the requisite showing required by this section, the court shall deny the petition.
(5) In the event relief is granted pursuant to this section, relief shall be limited to the issues of prospective child support payments and termination of parental rights, custody, and visitation rights. The male's previous status as father continues to be in existence until the order granting relief is rendered. All previous lawful actions taken based on reliance on that status are confirmed retroactively but not prospectively. This section shall not be construed to create a cause of action to recover child support that was previously paid.
(6) The duty to pay child support and other legal obligations for the child shall not be suspended while the petition is pending except for good cause shown. However, the court may order the child support to be held in the registry of the court until final determination of paternity has been made.
(7)(a) In an action brought pursuant to this section, if the scientific test results submitted in accordance with paragraph (1)(b) are provided solely by the male ordered to pay child support, the court on its own motion may, and on the petition of any party shall, order the child and the male ordered to pay child support to submit to applicable scientific tests. The court shall provide that such scientific testing be done no more than 30 days after the court issues its order.
(b) If the male ordered to pay child support willfully fails to submit to scientific testing or if the mother or legal guardian or custodian of the child willfully fails to submit the child for testing, the court shall issue an order determining the relief on the petition against the party so failing to submit to scientific testing. If a party shows good cause for failing to submit to testing, such failure shall not be considered willful. Nothing in this paragraph shall prevent the child from reestablishing paternity under s. 742.10.
(c) The party requesting applicable scientific testing shall pay any fees charged for the tests. If the custodian of the child is receiving services from an administrative agency in its role as an agency providing enforcement of child support orders, that agency shall pay the cost of the testing if it requests the test and may seek reimbursement for the fees from the person against whom the court assesses the costs of the action.
(8) If the relief on a petition filed in accordance with this section is granted, the clerk of the court shall, within 30 days following final disposition, forward to the Office of Vital Statistics of the Department of Health a certified copy of the court order or a report of the proceedings upon a form to be furnished by the department, together with sufficient information to identify the original birth certificate and to enable the department to prepare a new birth certificate. Upon receipt of the certified copy or the report, the department shall prepare and file a new birth certificate that deletes the name of the male ordered to pay child support as the father of the child. The certificate shall bear the same file number as the original birth certificate. All other items not affected by the order setting aside a determination of paternity shall be copied as on the original certificate, including the date of registration and filing. If the child was born in a state other than Florida, the clerk shall send a copy of the report or decree to the appropriate birth registration authority of the state where the child was born. If the relief on a petition filed in accordance with this section is granted and the mother or legal guardian or custodian requests that the court change the child's surname, the court may change the child's surname. If the child is a minor, the court shall consider whether it is in the child's best interests to grant the request to change the child's surname.
(9) The rendition of an order granting a petition filed pursuant to this section shall not affect the
legitimacy of a child born during a lawful marriage.
(10) If relief on a petition filed in accordance with this section is not granted, the court shall assess the costs of the action and attorney's fees against the petitioner.
(11) Nothing in this section precludes an individual from seeking relief from a final judgment, decree, order, or proceeding pursuant to Rule 1.540, Florida Rules of Civil Procedure, or from challenging a paternity determination pursuant to s. 742.10(4).
History.--s. 1, ch. 2006-265.