Disestablishing paternity refers to the legal process by which a man who is not the biological father of a child can terminate his paternal rights and child support obligations. This can occur when newly discovered evidence shows that the man ordered to pay child support is not the biological father of the child. The following outlines the procedure, requirements, and considerations involved in this legal process according to Section 742.18 of Florida Statutes.

1. Filing a Petition for Disestablishment

a. Jurisdiction and Filing
 

• Where to File: To initiate a petition for disestablishment, the male must file in the circuit court with jurisdiction over the child support obligation. If the child support was administratively determined and not yet ratified by a court, the petition must be filed in the circuit court where the  mother or legal guardian resides. If the mother or guardian no longer lives in the state, the petition may be filed in the circuit court of the petitioner’s county of residence.
   

• Service of Petition: The petition must be served to the mother or legal guardian, and in administrative cases, also to the Department of Revenue.

b. Contents of the Petition
 

• Affidavit of Newly Discovered Evidence: The petition must include an affidavit stating that new evidence relating to paternity has come to light since the initial paternity determination.
   

• Scientific Testing Results: The petition must provide the results of scientific tests, such as DNA tests, showing a probability that the male cannot be the biological father. If testing could not be performed before filing, the petition should include an affidavit explaining this or request the court to order testing.
   

• Affidavit of Child Support Compliance: The petitioner must provide an affidavit confirming they are current on all child support payments or have substantially complied with the obligation, explaining any delinquencies due to just cause.

2. Court Review and Relief

a. Conditions for Relief

The court will grant relief if it finds:

• Newly discovered evidence supports the claim of non-paternity.

• Scientific tests were properly conducted and indicate the male is not the biological father.

• The male is current with child support payments or has substantially complied with the support obligation, with any delinquency explained.

• The male has not adopted the child.

• The child was not conceived through artificial insemination during the marriage of the male and the child’s mother.

• The male did not prevent the biological father from asserting his rights.

• The petition was filed while the child was under 18 years old.

b. Barred Relief

Relief will not be granted if the male:

• Married the mother and assumed parental duties.

• Acknowledged paternity in a sworn statement.

• Consented to being named on the birth certificate.

• Promised in writing to support the child.

• Ignored orders for scientific testing.

• Signed a voluntary acknowledgment of paternity.

 

3. Effects of Granting Relief

a. Scope of Relief

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If granted, relief typically affects:

• Prospective Child Support: Relief applies to future child support obligations.

• Termination of Parental Rights: Includes termination of parental rights, custody, and visitation rights.

• No Retroactive Recovery: Relief does not create a cause of action to recover previously paid child support.

b. Status and Administrative Actions

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• Continued Parental Status: The male’s status as a father remains until the court issues an order granting relief.

• Registry and Vital Statistics: The court clerk will send a certified copy of the order to the Office of Vital Statistics, which will then update the birth certificate to remove the male’s name if necessary. This includes updating or issuing a new birth certificate with the same file number as the original.

 

4. Additional Considerations

a. Ongoing Obligations

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• Payment Suspension: The obligation to pay child support remains in effect while the petition is pending unless good cause is shown. The court may order that support payments be held in escrow.

b. Costs and Fees

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• Cost Assessment: If the petition is denied, the petitioner may be responsible for the costs and attorney's fees.

• Testing Fees: Costs for scientific testing are generally borne by the party requesting the test, but may be covered by state agencies in enforcement cases.

 

c. Other Relief Options

Rule 1.540 Relief: The statute does not preclude seeking relief from final judgments or challenging paternity determinations under other legal provisions.

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​Legal cases can be overwhelming. Contact us today for a free case evaluation and find out how our firm can help ease the burden and guide you through the process.

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For more information, please visit Florida Statue 742

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