In the state of Florida, there is a presumption of any child born during an intact marriage to be the child of both parents. However, in some rare cases, the legal father may not be the biological father to the child. If you are married and have discovered a child may not have your genetic ties, contact your Orlando Child Custody Attorney as there are many legal steps you must take in order to disestablish paternity and be removed as legal father to a child.
Florida is a state where the presumption of legitimacy is one of the most difficult to overcome. This presumption founds its foundation in public policy and the idea that a child’s status of legitimacy is in their best interest and protects their welfare. J.T.J. v. N.H., 84 So. 3d 1176 (Fla. 4th DCA 2012) This presumption may not be overcome unless there is clear and convincing evidence and this disestablishment is within the best interest of the child. Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018). In order to satisfy the clear and convincing evidence requirement, the court lays out specific guidelines for one to follow in order to disestablish paternity.
First, the court only allows the legal father to petition the court to disestablish paternity. The legal father is known as the husband to the biological mother of the child at the time of birth. In contrast, a putative father is one where a legal relationship has not been established. The court does not provide standing for putative fathers to establish paternity of a child who was born during an intact marriage Tijerino v. Estrella, 843 So.2d 984 (Fla. 3d DCA 2003); unless “common sense and reason are outraged” by barring such an action M.L. v. Dep’t of Children & Families, 227 So. 3d 142 (Fla. 4th DCA 2017). Standing has been given to putative fathers where the legal father was deployed and had no contact with their wife during the time of conception, therefore, overruling the common sense element. This standing requirement can be one of the most difficult tasks in disestablishing paternity, therefore employ the skills of an experienced Orlando Child Custody Attorney.
After, proper standing has been satisfied, the man must file a petition with the court containing certain factual elements as provided in Florida Statute 742.18. The petition must include: an affidavit stating there has been newly discovered evidence relating to the paternity of the child, DNA test results displaying the probability of paternity executed within the last 90 days or an affidavit stating the lack of access to the child to perform such testing and a motion for paternity testing to be ordered by the court. Newly discovered evidence may come in the form of the genetic testing, or statements by the mother. However, genetic testing must be done with respect to the scientific community and you must be able to provide the court with evidence of accurate testing. Therefore, it is important not to rely on at home test kits, but have a reputable company handle these results for you. If the court finds these results to be accurate and disestablishment of paternity to be in the child’s best interest, they will remove you as the legal father. This action in turn removes all your legal rights and responsibilities to this child.
This event can be emotional and proper representation is necessary. Your Orlando Child Custody Attorney will be able walk with you through this process and explain in detail the necessary requirements. We have extensive experience with disestablishment proceedings and will fight to protect your rights.
Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.