Articles Posted in Paternity

In a recent paternity case captioned L.G. v. Department of Children and Families, the legal father of a child appealed an order denying his Petition to Disestablish Paternity of a child. The legal father was not married to the child’s mother. However, the legal father acknowledged his paternity on the child’s birth certificate. The legal father filed a Petition to Disestablish Paternity based on newly discovered evidence. The newly discovered evidence was that a recent DNA test showed that he was not the actual father of the child. The trial judge denied the father’s Petition based upon the fact that another father was unwilling to step in and serve as the father of this child.

In a case captioned Department of Health and Rehabilitative Services v. Privette, the Florida Supreme Court ruled that before a blood test can be required to prove paternity in cases where a child is born legitimate, the trial court must find that the dependent child’s best interests will be served by the blood test. Privette only applies in those cases where a legal father faces the threat of losing parental rights and a child faces the threat of being declared to be illegitimate. After Privette was decided; in 2006, the Florida Legislature passed the Paternity Disestablishment Statute. By passing the Paternity Disestablishment Statute, the Legislature provided that even if paternity has been established, there is still a mechanism for a man to use to disestablish paternity and avoid child support. The lower court in this case was reversed because it ruled that another father must be willing to establish paternity in order for a petition for disestablishment of paternity to be granted. The new Paternity Disestablishment statute contains no such requirement.

The best interest of the child inquiry only applies in cases where the legal father faces the threat of losing parental rights and the child faces the threat of being declared to be illegitimate. Therefore the trial court’s order was reversed and the case was remanded for further proceedings.

In paternity unwed/unmarried parents cases, gifts from the paying party’s family members and gifts from the paying party’s boyfriends and girlfriend may be included in calculating the paying party’s income. In a recently decided case captioned Wood v. Wood, the father started working for a company owned by his girlfriend. In his financial affidavit the father listed his monthly income. The trial court found that the father earned a salary from the father’s employment, but also believed that another source was paying the father’s expenses. The trial court imputed additional income to the father from his family and from  his girlfriend. When the case was presented to the Florida Court of Appeal, the father argued that the trial court misunderstood his financial circumstances and argued that the trial court’s ruling was erroneous. The Court of Appeal agreed with the father and found that the trial court’s ruling was based on speculation. The Florida Court of Appeal and reversed the lower court’s ruling.

The Court of Appeal ruled that in a paternity action, a party’s income includes expenses that are reimbursed if they reduce living expenses. In imputing income, a trial court is required to make a specific determination as to the exact amounts of the reimbursed expenses.  When gifts from family members and friends are ongoing and continuing and it is shown that they will occur in the future, they may be included in calculating a party’s income for purposes of calculating child support.

In this case, the Court of Appeal found that the evidence did not warrant a finding that the father received additional income from his family or from his girlfriend. The Court of Appeal found that the evidence did not warrant the conclusion that the parents’ gifts to the father would continue into the future. Additionally, there was no evidence that the girlfriend reimbursed the husband’s expenses.

In a paternity unwed/unmarried parents case, two men both sought to be declared the father of a child. In J.A.I. v. B.R., the Florida Court of Appeal stated if a person signs a notarized voluntary acknowledgment of paternity, this acknowledgment creates a presumption of paternity that is rebuttable. When 60 days have elapsed after the signing of the voluntary acknowledgment of paternity, the acknowledgment constitutes an establishment of paternity and may be challenged in court only on the basis of fraud, duress, etc. The burden of proof is then placed upon the challenging party.

Paternity is established when there is a judgment of paternity or by filing affidavits or a stipulation acknowledging paternity. Paternity is also established when a child is born into an intact marriage and is recognized by the mother and husband as being their child. When an unmarried mother and the alleged father get married after the child is born, the child is deemed to be their child. A mother does not have the right to block a father’s right to determine paternity by marrying another man while a paternity action is pending.

In J.A.I. v. B.R., the Florida Court of Appeal stated that orders requiring a DNA test for paternity purposes may be reviewed by certiorari. The Court of Appeal reversed the lower court’s decision to grant the alleged father’s request to require genetic testing. The alleged father filed his request after the 60 day period of time had elapsed.

In a recent paternity case captioned Perez v. Fay, the Florida Court of Appeal stated that a parent has a constitutionally protected right to a meaningful relationship with his child. Time-sharing privileges should not be denied to either parent as long as the parent conducts himself, while in the presence of the child, in a manner which will not adversely affect the child. Because of the constitutional right to a meaningful parent-child relationship, there must be substantial evidence in the record that demonstrates that any restrictions on time-sharing are in the best interests of the child before those restrictions will be upheld. In Perez v. Fay, there was no evidence that the parent had conducted themselves during their supervised time-sharing in any manner that would adversely affect the parties’ child. However, the trial court reduced the parent’s time-sharing with the child from two to three hours per week to only four hours per month. This drastic reduction in the parent’s time-sharing was reversed by the Court of Appeal.

Additionally, in Perez v. Fay, the Court of Appeal stated that the trial court made a mistake when it delegated to a time-sharing supervisor the authority to schedule the parent’s time-sharing at the time-sharing supervisor’s sole discretion. The Court found that it is the trial court’s duty to ensure that an appropriate relationship is maintained between a parent and his child, and that responsibility cannot be abdicated to an expert. The trial court cannot delegate its authority to another person to rule on the visitation details. The trial court must make sure that an appropriate relationship is maintained between a parent and a child and it cannot delegate its responsibility to the person supervising time-sharing. Finally, in  paternity case, the Court found that the expense of a time-sharing coordinator must be allocated in the same manner as child support obligations are allocated.

To speak with a father’s rights attorney in Palm Beach Gardens, contact Matthew Jay Lane & Associates, P.A. at (561) 363-3400.

In a paternity action, a father cannot require tnity-test.jpghe child to take a paternity test unless the father contests the fact that he is the father in his pleadings or in his testimony. In D.O.R. ex rel Corbitt v. Alletag, the father signed an affidavit of paternity. When the Department of Revenue filed an action for child support, the father filed an answer in which he disagreed with the allegations in the Department of Revenue’s petition and requested that a paternity test be held to determine whether he was in fact the father. The matter was heard by a Child Support Hearing Officer. At the hearing the father admitted that he signed the birth certificate, but asserted that he did so because he was the only male present at the hospital when the child was born. The father requested that a DNA test be performed. The trial court affirmed the Child Support Hearing Officer’s recommendation that a DNA test be performed. The Florida Court of Appeal overruled the trial court and held that merely alleging that the father is unsure that he is the father is insufficient.

The court stated that the question of paternity is not placed in controversy by a father unless he asserts in his answer or in his testimony that he is not the child’s biological father. This is especially true when the father admits at the hearing that he signed the child’s birth certificate as the child’s father. Paternity is placed in controversy if the alleged father files papers alleging that he is not the father or asserts that he has not acknowledged his fatherhood in an affidavit. The Court of Appeal stated that the ground asserted by the father in support of his request for paternity testing-to be 100% sure that he is the child’s biological father-was insufficient as a matter of law to put paternity in controversy. A father’s wish for a DNA test to be sure that he is the father does not place paternity in controversy.

To speak with a lawyer for unwed parents in Boynton Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a Florida paternity proceeding involving Father’s rights, in order for the court to require a Father to pay life insurance to secure a child support obligation, the trial court must make certain written findings. Fla. Stat. 61.13(1)(c) states that: “To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.” In Velaga v. Gudapati, the Florida Court of Appeal recently stated that in determining whether to require a Father to purchase life insurance to secure the payment of child support, under Florida Statute § 61.13(1)(c), the trial court must make findings concerning the cost of the insurance. The trial court must also make findings concerning the Father’s ability to pay for the insurance.

Finally, the trial court must find that special circumstances exist that would necessitate the purchase of life insurance.

To speak with a North Palm Beach Father’s rights attorney, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a paternity case and in a marital case, a temporary domestic violence injunction may be extended during a continuance of a hearing, however, the statute does not provide for the issuance of a series of temporary injunctions. In Prior v. Prior, the Florida Court of Appeal recently stated:

“Amanda Pryor appeals an order extending a temporary injunction for protection against domestic violence which, even as extended, has now expired. We vacate the November 14, 2013 order under review, which extended the temporary injunction, as well as the temporary injunction itself, and dismiss the appeal. Section 741.30, Florida Statutes (2013), “authorizes extending a temporary injunction during a continuance of the evidentiary hearing, but authorizes a continuance only for good cause: ‘The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.’ § 741.30(5)(c), Fla. Stat. (201[3]).” Dietz v. Dietz, 127 So. 3d 1279, 1280 (Fla. 1st DCA 2013) (“Section 741.30 does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.’” (citation omitted)). While “injunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction,” Rodman v. Rodman, 48 So.3d 1022, 1022 (Fla. 1st DCA 2010), we have vacated both the order under review in the present case and the temporary injunction it purported to extend.”

To speak with a paternity lawyer in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a paternity case and in a child support matter, a contempt of court order must contain findings that: (i) a prior order was entered, (ii) the payor failed to pay part or all of the support ordered, (iii) the contemnor had the present ability to pay support, and (iv) that the alleged contemnor willfully failed to comply with the prior court order. In Napoli v. Napoli, the Florida Court of Appeal recently stated:

“We reverse and remand for further proceedings because the trial court’s contempt order does not contain the written findings required by rule 12.615 of |the Florida Family Law Rules of Procedure… When a trial court finds that a civil contempt has occurred, it must enter a written order containing: a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based… We hold that the written contempt order in this case does not comport with these requirements. First, the contempt order does not contain an express finding that the Husband willfully failed to comply with the court’s temporary relief order. Second, the contempt order does not articulate the facts supporting the court’s conclusion that the Husband had the ability to comply with the court’s prior order. Finally, the contempt order sanctions the Husband with incarceration but does not contain a separate, affirmative finding that he had the present ability to comply with the purge.”

To speak with a paternity attorney in Boynton Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a paternity proceeding, a child born during an intact marriage is presumed to be the child of the man to whom the biological mother was married. In CG v. J.R. & J.R., the Florida Court of Appeal recently stated: “… [T]his is…a case wherein the biological mother- while married to her husband-became pregnant by another man and wherein both fathers claim parental rights to the child. The fact that C.G.’s DNA test results established that he was H.G.-R.’s biological father is “legally insignificant” for purposes of establishing parental rights. See Slowinski v. Sweeney, 117 So.3d 73, 78 (Fla. 1st DCA 2013). 

“The Florida Supreme Court has defined the ‘legal father’ as the man to whom the mother was married when the child was born and whose name appears on the birth certificate ” Id. (citing Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305; 307 (Fla. 1993))…In G.F. C., the court was tasked with deciding whether a trial court properly dismissed a biological father’s petition to establish paternity where the child was born during the biological mother’s intact marriage to a man who was not the biological father. The court noted that at common law, a child born during an intact marriage was presumed to be the child of the man to whom the biological mother was married and that the common law presumption of legitimacy remained. 686 So. 2d at 1384 (citing Privette,617 So. 2d at 307)…This is not a case where either the biological father or the legal father has abandoned the child. Nor is this a case where either father failed to demonstrate a strong desire to be a part of the child’s life or even the ability to care for the child. Rather, this is one of those cases presenting the unfortunate circumstance of a child who was born into a legally intact marriage but who was conceived as the result of an extramarital affair. The consequence of that circumstance is that the third party, here C.G., has an interest in that child which is adverse to the legal father, here J.R. We are cognizant of the gravity of our decision and the legal ramification that it has on C.G.’s and H.G.-R.’s relationship. However, under the facts of this case, there is simply no support in Florida law for the proposition that H.G.-R. is entitled to have two legally recognized fathers.

To speak with a divorce attorney in North Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Contested paternity proceedings may not be heard by hearing officers because they have no constitutional or statutory authorization to make recommendations regarding custody and visitation. In Department of Revenue o/b/o Moore v. Williams, the Florida Court of Appeal recently stated: “The Department of Revenue appeals a Final Judgment of Support which deviated from the child support guidelines by more than five percent based on the findings and recommendations of a hearing officer…On behalf of the Mother, the Department filed a petition for support and other relief against the Father…

The matter went before a support enforcement hearing officer, who considered the visitation agreement in calculating the child support obligation…Over the Department’s objection, the hearing officer recommended deviating from the child support guidelines by more than five percent based on the agreement, referring to it as a “parenting plan.” The trial court adopted the hearing officer’s findings and recommendations in the final judgment of support without indicating whether it had approved the visitation agreement. After its motion to vacate was denied, the Department timely appealed…The hearing officer was not authorized to approve the visitation agreement because her authority does not extend to issues of visitation. See Fla. Fam. L. R. P. 12.491 (delineating the powers and duties of support enforcement hearing officers without including any authority relating to visitation issues); see also Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d208, 212 (Fla. 1998) (concluding that hearing officers are not authorized to hear contested paternity proceedings because they “have no constitutional or statutory authorization to make recommendations regarding custody and visitation”). And, unfortunately, the trial court simply approved the findings and recommendations of the hearing officer without conducting an independent review of the visitation agreement. Nothing in the record indicates that the trial court ever specifically approved the agreement, either before the hearing or in the final judgment.”

To speak with a paternity attorney in Boynton Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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