Family Law

Disestablishment of Paternity

Even after paternity has been established, it is possible to disestablish paternity and terminate any further obligation to pay child support once such a judgment disestablishing paternity is entered by the Court, if the person found to be the father is not, in fact, the biological father of the child.  This type of action, to disestablish paternity, is brought based upon Section 742.18, Florida Statutes, which lays out a the requirements necessary to do so.  If paternity is disestablished under this statute, then the mother may no longer be able to receive child support.  The child’s birth certificate may also be changed.

What Must be Proven to Disestablish Paternity

In order to disestablish paternity, the person seeking to do so must:

    • File a sworn to affidavit stating that newly discovered evidence has come to light since the paternity was established, or since child support was ordered.
    • Provide the results of an acceptable DNA test showing that the person is not the biological father (which must have been done within 90 days, with some exceptions).
    • File a sworn to affidavit stating that the person seeking to disestablish paternity is current on all child support payments for the child in question, or that he has substantially complied with his child support obligation, and that any delinquency in his child support obligation arose from his inability, for just cause, to pay the child support.
What the Court May Do if the Statutory Requirements are Met

The statute provides that a Court should grant the disestablishment if the Court finds the following to be true:

  • Newly discovered evidence relating to the paternity of the child has come to knowledge of the person filing the petition since the initial paternity determination or establishment of a child support obligation was made.
  • The DNA test was properly conducted.
  • The person filing the petition is current on all child support payments or that he has substantially complied with his child support obligation and that any failure to pay was due to his inability for just cause to pay when it became due.
  • The person who filed the petition has not adopted the child.
  • The child was not conceived by artificial insemination while the person who filed the petition and the child’s mother were married.
  • The person who filed the petition did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child.
  • The child was younger than 18 years of age when the petition was filed.
Under What Circumstances Will the Court Refuse to Grant Disestablishment?

A Court may not grant the disestablishment petition if the Court finds that the person who filed the petition engaged in the following conduct after learning that he is not the biological father of the child:

  • Married the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;
  • Acknowledged his paternity of the child in a sworn statement;
  • Consented to be named as the child’s biological father on the child’s birth certificate;
  • Voluntarily promised in writing to support the child and was required to support the child based on that promise;
  • Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or
  • Signed a voluntary acknowledgment of paternity as provided in s. 742.10(4).
The Court May Only Grant Future Relief

If the disestablishment is granted, then the Court may only grant relief in the future.  The male’s previous status as father continues to be in existence until the Order granting relief is entered, and all previous lawful actions taken based on reliance on that status are confirmed retroactively but not prospectively.  Further, the statute allowing disestablishment will not be construed to create a cause of action to recover child support that was previously paid.

  • The duty to pay child support and other legal obligations for the child is 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.
  • If the Court grants disestablishment of paternity, the clerk of the court must forward to the Office of Vital Statistics of the Department of Health a certified copy of the Court Order, together with sufficient information to identify the original birth certificate and to enable the department to prepare a new birth certificate.  This must be done within 30 days.  A new birth certificate is then issued.
  • If the relief on a petition 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.
  •  If the Court denies the disestablishment of paternity, then the person who filed the petition is required to pay for the costs and attorney’s fees incurred by the mother of the child.

If you are thinking about trying to disestablish paternity regarding a child, or if the other parent of your child is trying to do so, you need the help of an experienced family law lawyer.  Contact us today for a consutlation to see how we can help.

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