To understand the process of Disestablishment of Paternity it is very important to understand how establishment of paternity happens. There are basically two scenarios, if the mother of the child is married, or not married.
Legal Establishment of Paternity During a Marriage
According to Florida Statute § 382.013 (2) (a) “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child.” If the mother is married her husband is presumed to be the child’s father as a matter of law. This presumption of “legitimacy” is based on Florida’s Family Law policy of protecting the welfare of minor child.
Legal Establishment of Paternity Not During a Marriage
On the other hand, if a child’s father and mother are not married to each other when the child is born, then the father has no legal relationship with the child. However, if the father and mother voluntarily sign an affidavit at the child’s birth stating that the male in the relationship is the father, they now have establish the paternity. Paternity can also be established by a Court Order, the determination of paternity in Administrative Child Support case, or by filing an affidavit of paternity with the Clerk of the Court after the birth of the child.
It is not uncommon for a husband and wife to separate and live apart for a few months or even for several years before seeking a dissolution of their marriage. Should the wife have a child during that time of separation, there is still a legal presumption that the child belongs to the Husband. This is clearly a case where the husband/legal father may want to disestablish paternity to the child.
Likewise, should the legal father of a child born out of wedlock discover that he is not the biological father of the child, this would also be an instance where the legal father may want to disestablish paternity to the child.
The Disestablishment Process
According to Fla. Stat. 742.18 The disestablishment of paternity requires certain things to be included in the Petition:
- 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.
- The results of DNA 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 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.
- 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.
Only the Male may Disestablish Paternity
That’s right, only the male may file an action to disestablish paternity. The Mother of a child cannot move the Court to disestablish paternity. Fla. Stat. 742.18 states in Paragraph (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.”
Here at New Horizons Law, P.A., Michael J. Costantino, Esq., we understand the complexities of the disestablishment process. Call us, we would be happy to discuss your case, and how we can help.