PATERNITY Marck K Joseph Esq PATERNITY WHY YOU

PATERNITY: Marck K. Joseph, Esq.

PATERNITY: WHY YOU SHOULD HAVE PUT A RING ON IT By: Your mother, grandmother, beyonce and marck k. joseph, esq.

PATERNITY: THAT THING YOU REALLY SHOULD HAVE ESTABLISHED BEFORE YOUR CHILD’S MOTHER MOVED OUT OF STATE Marck K. Joseph, Esq.

PATERNITY: THAT THING YOU THOUGHT THE BIRTH CERTIFICATE TOOK CARE OF Marck K. Joseph, Esq.

PATERNITY: WHY YOU’RE NOT GETTING A PICK-UP ORDER Marck K. Joseph, Esq.

PATERNITY: BUT WE WERE SEPARATED AT THE TIME!!! Marck K. Joseph, Esq.

NO MARRIAGE, NO FATHER: FL STAT 744. 301(1) • Natural Guardian Statute: • 744. 301(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents' parental rights have been terminated pursuant to chapter 39. If a child is the subject of any proceeding under chapter 39, the parents may act as natural guardians under this section unless the court division with jurisdiction over guardianship matters finds that it is not in the child's best interests. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

NO MARRIAGE, NO RIGHTS: FL STAT 744. 301(1): SO WHAT DOES THAT MEAN… • MOM makes the rules: • Sole Custody of child to Mom • Decides daycare • Decides where the child lives • Decides if “dad” sees the child

NO MARRIAGE, NO RIGHTS: FL STAT 744. 301(1): THE ROCK SAYS… • IT DOESN’T MATTER!!!: • WHAT HIS/HER (LAST) NAME IS!!! • If you’re on the birth certificate • The child has lived with you and/or you exercised time-sharing • That MAURY said you are the father… or any other paternity test… yet • You’re paying child support (directly or through the courts)… yes I know that the child support order said paternity was established…we’ll get to that. • You are on the putative Father’s registry

ESTABLISHING PATERNITY: NOT AS EASY AS MAKING THE KID • 5 Ways to establish paternity FL Stat 742. 10(1): 1) 2) 3) 4) 5) Pursuant to a Petition to Establish Paternity under Fla. Stat. § 742. 011; Within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers’ compensation or similar compensation programs; Affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court; An affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by 2 individuals and signed under penalty of perjury is executed by both parties; OR Paternity is adjudicated in an Administrative Hearing by the Department of Revenue as provided in § 409. 256.

EFFECT OF AFFIDAVIT OF ACKNOWLEDGMENT OF PATERNITY • Creates a rebuttable presumption of Paternity. Fla. Stat. § 742. 12(1)-(2) • If not rescinded within 60 days, then the Judge cannot order a paternity (DNA) test unless it is otherwise in the best interests of the child. See Allison v. Medlock, 983 So. 2 d 789 (Fla. 4 th DCA 2008). • After the 60 day period, a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact. • The legal responsibilities arising from the acknowledgment may not be suspended during the challenge, except upon a finding of good cause by the Court.

THE BIRTH CERTIFICATE AND PUTATIVE FATHER REGISTRY DO NOT ESTABLISH PATERNITY Florida Dept. of Revenue ex rel. R. A. E. v. M. L. S. , 756 So. 2 d 125 (Fla. 2 d DCA 2000). Putative Father Registry (63. 054, Fla. Stat. ): an unmarried bio father preserves the right to notice and consent to adoption. NOTE HOWEVER: Where father’s name appears on the child’s birth certificate, it can be assumed that the hospital complied with Fla. Stat. § 382. 013(2)(c), which provides that “the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father” thereby creating a PRESUMPTION OF PATERNITY.

JURISDICTION AND SERVICE OF PROCESS • Subject Matter: Fla. Stat. § 742. 011: Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise. • Long Arm Jurisdiction (Personal): If the Respondent was served outside of Florida, the Petition must include the long arm allegations: “THE PETITIONER AND RESPONDENT ENGAGED IN AN ACT OF SEXUAL INTERCOURSE WITHIN THE STATE OF FLORIDA WITH RESPECT TO THE CONCEPTION OF THE CHILD: A. B. C. (BORN 2014). ” Fla. Stat. § 48. 193 • If long arm jurisdiction allegations are not in the Petition, the Petition must be amended and the Respondent needs to be re-served. Hollowell v. Tamburro, 991 So. 2 d 1022 (Fla. 4 th DCA 2008)

JURISDICTION, SERVICE OF PROCESS, VENUE • The court must have personal jurisdiction over the putative father in a paternity proceeding. • Jurisdiction over the paternity action comes first, not jurisdiction under the UCCJEA. Thus, even if FL is the home state of the child, if paternity has not been established, and the sex act did not occur in FL, the court does not have personal jurisdiction over the respondent. • No constructive service in paternity actions. T. J. K. v. N. B. , 237 So. 2 d 592 (Fla. 4 th DCA 1970) • Venue (to establish/not disestablish): The proceedings must be filed in the circuit court of the county where the plaintiff resides or the defendant resides. Fla. Stat. § 742. 021(1)

CONTENT OF PETITION/COUNTERPETITION…. • THE PETITION TO DETERMINE PATERNITY SHALL ALLEGE SUFFICIENT FACTS CHARGING THE PATERNITY OF THE CHILD: üDATES OR TIME PERIODS DURING WHICH THE ALLEGED RELATIONS OCCURRED üWHETHER THE CHILD’S MOTHER HAD SEXUAL RELATIONS WITH OTHER MEN DURING THE ALLEGED TIME PERIOD üALLEGATIONS ESTABLISHING A REASONABLE POSSIBILITY OF THE NONEXISTENCE OF SEXUAL CONTACT BETWEEN THE PARTIES • Fla. Stat. 742. 021

IF PATERNITY IS CONTESTED…. DNA TEST ØOnce the Petition is filed, if there is a question of paternity…file a MOTION FOR PATERNITY TEST! Fla. Stat. 742. 12 ØOnce the Motion is granted, the Order must contain the following statutory language: ANY OBJECTION TO THE TEST RESULTS MUST BE FILED WITH THE COURT AT LEAST TEN (10) DAYS PRIOR TO THE HEARING. IF NO OBJECTION IS FILED, THE TEST RESULTS SHALL BE ADMITTED INTO EVIDENCE WITHOUT THE NEED FOR PREDICATE TO BE LAID OR THIRD PARTY FOUNDATION TESTIMONY TO BE PRESENTED ØIf no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented.

IF PATERNITY IS CONTESTED…. DNA TEST Ø A statistical probability of paternity of 95 percent or more creates a rebuttable presumption that the alleged father is the biological father of the child. Ø If test results are disputed, the court, upon reasonable request of a party, shall order that an additional test be made at the expense of the party requesting additional testing. ØNote: Once a Final Judgment has been obtained and a Final Judgment has been entered, a party may not reopen the case based on a different type of DNA test. Watson v. Griffith, 665 So. 2 d 357 (Fla. 1 st DCA 1995)

PROCEDURE – FLA. STAT. 742. 031 üJudge has discretion to restrict those in attendance at trial. üChild support MUST be addressed in the Final Judgment of Paternity. üIf appropriate, the court SHALL order the father to pay … moneys sufficient to pay reasonable attorney’s fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child and to pay all costs of the proceeding. üBills for pregnancy, childbirth, and scientific testing are admissible without foundation testimony, and constitute prima facie evidence of amounts incurred. üIssues Related to Timesharing and Parental Responsibility MAY be Addressed in a Final Judgment of Paternity – not required. üAdministrative Orders - A request for custody or visitation MAY NOT be filed in a DOR Action. Fla. Stat. § 409. 2564.

SO I AM DAD (LEGAL) NOW IT’S OVER RIGHT? • NOPE!!! Read it again: • The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child UNLESS THE COURT ENTERS AN ORDER STATING OTHERWISE • But on the Brightside: • Now have standing to be noticed and informed of proceedings related to the minor child such as adoption, name change, etc. • Can now get CERTAIN pick-up orders • Can also now request custody/visitation/timesharing with the minor child

SO I’M DAD NOW… IT’S OVER RIGHT? PATERNITY PART (2)… 742. 031(2) • If you JUST establish paternity: • 742. 031(2) “If a judgment of paternity contains only a child support award with no parenting plan or time-sharing schedule, the obligee parent shall receive all of the time-sharing and sole parental responsibility without prejudice to the obligor parent. If a paternity judgment contains no such provisions, the mother shall be presumed to have all of the time-sharing and sole parental responsibility. ”

PATERNITY: I ESTABLISHED IT AND ALL I GOT WAS THIS CHILD SUPPORT OBLIGATION Marck K. Joseph, Esq.

IT’S NOT ENOUGH TO ESTABLISH PATERNITY • The most functional way (other than marriage) to ESTABLISH PATERNTAL RIGHTS is to file a Petition to Determine and/or Establish Paternity under 742. • It takes care of everything: • Paternity Status • Parental Responsibility • Time-sharing • Child Support • Etc.

IT’S NOT ENOUGH TO ESTABLISH PATERNITY • PRACTICE HINT • When formally getting an judication of paternity from the Court, try to get either a temporary order granting shared parental responsibility and a temporary time-sharing schedule. • Be mindful of 742. 031(2) • 742. 031(2) “If a judgment of paternity contains only a child support award with no parenting plan or time-sharing schedule, the obligee parent shall receive all of the time-sharing and sole parental responsibility without prejudice to the obligor parent. If a paternity judgment contains no such provisions, the mother shall be presumed to have all of the time-sharing and sole parental responsibility. ”

BIO DAD VS. LEGAL DAD: Making the Supreme Court Work

PRESUMPTION OF LEGITIMACY: THE LAW PRESUMES THAT THE MOTHER’S HUSBAND IS THE CHILD’S LEGAL FATHER • The presumption of legitimacy is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child. J. T. J. v. N. H. , 84 So. 3 d 1176 (Fla. 4 th DCA 2012). • As a general rule, a putative father does not have standing to seek to establish the paternity of a child where the child is born into an intact marriage. • The First District has gone so far as to suggest that the presumption of legitimacy may never be rebutted. Slowinski v. Sweeney, 64 So. 3 d 128, 129 (Fla. 1 st DCA 2011). HOWEVER --- Slowinski is now bad law. WHY?

SIMMONDS V. PERKINS (FLA. 2018) First, the 4 th DCA created conflict in 2017: “[T]he presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. Thus, the presumption of legitimacy may be rebutted in certain, rare circumstances. ” Perkins v. Simmonds, 227 So. 3 d 646 (Fla. 4 th DCA 2017). • Certified conflict: Whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal. Simmonds v. Perkins, 247 So. 3 d 397 (Fla. 2018) • HELD: A biological father does have standing to rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern for the welfare of the child. ” Kendrick v. Everheart, 390 So. 2 d 53 (Fla. 1980). • Further HELD: The presumption is overcome when there is a “clear and compelling reason based primarily on the child’s best interests. ” Privette, 617 So. 2 d 305 (Fla. 1993).

REBUTTING THE PRESUMPTION OF LEGITIMACY ØWhile a biological father who is a stranger to an existing marriage into which a child is born has extremely limited rights, his ability to establish his paternity is not left entirely to the husband's "whim. " A biological father may seek to establish his paternity even when the married woman and her husband object if “common sense and reason are outraged” by barring such an action based upon the marital presumption. M. L. v. Dep’t of Children & Families, 227 So. 3 d 142 (Fla. 4 th DCA 2017) citing Lander v. Smith, 906 So. 2 d 1130 (Fla. 4 th DCA 2005). ØThe court cannot summarily dismiss a petition to establish paternity for failure to state a cause of action based solely on the implication of the presumption of legitimacy. Fla. Dep’t of Revenue ex rel. L. M. M. v. A. M. , 192 So. 3 d 582 (Fla. 2 d DCA 2016) (cited in Simmonds decision). In other words, the presumption of legitimacy need not be rebutted at the outset of a paternity action and should instead be addressed during the proceedings.

ORDERING A BLOOD TEST – PRIVETTE • Dep’t of H. R. S. v. Privette, 617 So. 2 d 305 (Fla. 1993) • Before blood tests can be ordered in cases in which a presumption of legitimacy is challenged by the putative father, the trial court is required to hear argument from the parties, including the legal father (if he wishes to appear), and a GAL appointed to represent the child. • Before ordering DNA test, trial court must: ü determine that the complaint appears factually accurate, üis brought in good faith, üis likely to be supported by reliable evidence, and üfind that the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy. • Burden of Proof: clear and convincing evidence.

CHECKLIST OF REQUIREMENTS FOR REBUTTING THE PRESUMPTION LEGITIMACY: üCommon sense and reason are outraged by barring OF an action based upon the marital presumption; üBiological father manifests a “substantial and continuing” concern for the child’s welfare; üThe party seeking a blood test must prove the Privette factors by clear and convincing evidence; and üClear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father. üThe Legal Father is an indispensable party to the proceeding. Fla. Dept. of Rev. v. Cummings, 930 So. 2 d 604 (Fla. 2006)

DANIEL: THE PRESUMPTION OF LEGITIMACY IS NOT OVERCOME BY STIPULATION • The presumption of legitimacy is not overcome when a married husband wife stipulate that the husband is not the child’s father, but do not challenge the child’s legitimacy and the birth certificate remains unchanged. Daniel v. Daniel, 695 So. 2 d 1253 (Fla. 1997). • Fla. Stat. § 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, unless paternity has been determined otherwise by a court of competent jurisdiction. ” • Legitimacy and Paternity are NOT the same thing. • Legitimacy exists when a child is born during the mother’s marriage, regardless of whether husband is the father. • The establishment of the biological father’s paternity will not impugn or otherwise affect the child’s legitimacy.

DISESTABLISHMENT OF PATERNITY FLA. STAT. § 742. 18 • Statute passed in 2006 • Establishes the circumstances under which a male may disestablish paternity or terminate a child support obligation when he is not the biological father of the child. • Must file a Petition in the circuit court having jurisdiction over the child support obligation, OR if child support was determined administratively and has not been ratified by a court, then the Petition must be filed in the circuit court where the mother/legal guardian resides and served on DOR and the mother/legal guardian.

DISESTABLISHMENT OF PATERNITY

PETITION TO DISESTABLISH MUST INCLUDE: 1) Affidavit executed by the Petitioner that newly discovered evidence relating to the paternity of the child has come to petitioner’s knowledge since the initial paternity determination. 2) Scientific testing results, within 90 days prior to the filing of the Petition, indicate that the man cannot be the father of the child for whom child support is required OR an affidavit executed by the Petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the Petition. (If the latter, request DNA test in proceeding. ) 3) Affidavit executed by Petitioner stating that he is current on all child support payments or that he has substantially complied with his child support obligation and that any delinquency in the child support obligation arose from his inability for just cause to pay. NO UNCLEAN HANDS!

PETITION TO DISESTABLISH GRANTED ONLY IF: • The evidence shows: üNewly discovered evidence üProperly conducted DNA test üChild support current üPetitioner never adopted the child üNo artificial insemination while married to mother üNo interference of bio dad’s assertion of paternal rights üChild under age of 18 when petition filed Note: The absence of another putative father who is willing to “step in” and establish paternity cannot preclude the petitioner from an order disestablishing his paternity. L. G. v. Dep’t of Children and Families, 227 So. 3 d 653 (Fla. 4 th DCA 2017).

PETITION TO DISESTABLISH GRANTED ONLY IF: • The Petitioner, after learning that the child is not his, does NOT: üMarry mother and assume duty to pay support üAcknowledge paternity in a sworn statement üConsent to be named as bio dad on child’s birth certificate üVolunteer in writing to pay support and have that obligation enforced üDisregard written notice directing him to submit to DNA test üExecute a Voluntary Acknowledgement of Paternity Note: If petition is denied, the court shall assess the costs of the action and attorney’s fees against the petitioner. § 742. 18(10).

DISESTABLISHMENT - IF GRANTED… üThe relief is limited to the issues of prospective child support payments and termination of parental rights, custody, and visitation rights. üThe rendition of an order granting a petition to disestablish paternity shall not affect the legitimacy of a child born during a lawful marriage. Fla. Stat. § 742. 18(9).

FLA. STAT. § 742. 18 IS NOT AN EXCLUSIVE REMEDY Ø Fla. Fam. L. R. P. 12. 540 Ø Fla. Stat. § 742. 10(4) Nothing precludes an individual from seeking relief from a final judgment, decree, order, or proceeding pursuant to Rule 12. 540, Florida Family Law Rules of Procedure, or from challenging a paternity determination pursuant to Fla. Stat. § 742. 10(4). Such challenges generally have to be made within 1 year of the final judgment of paternity. Anderson v. Anderson, 845 So. 2 d 870 (Fla. 2003); D. F. v. Dept. of Revenue, 823 So. 2 d 97 (Fla. 2002) Note: Disestablishment of paternity is a separate action from a motion for relief from judgment due to fraud or misrepresentation, and the facts/elements necessary to establish the respective elements of each are not the same. Sheridan v. Rennhack, 200 So. 3 d 255 (Fla. 1 st DCA 2016).

WHAT CONSTITUTES NEWLY DISCOVERED EVIDENCE? • In order to prevail on a petition to disestablish paternity, the petitioner must show newly discovered evidence, in addition to DNA test results. Hooks v. Quaintance, 71 So. 3 d 908 (Fla. 1 st DCA 2011). • A DNA test proving that the former husband was not the biological father of the former wife’s child constituted newly discovered evidence in support of former husband’s petition to disestablish paternity. P. G. v. E. W. , 75 So. 3 d 777 (Fla. 2 d DCA 2011).

ESTABLISHMENT OF MATERNITY Chapter 86 – Declaration of Judgments B. B. S. , v. Rodriguez–Murguia, 191 So. 3 d 528 (Fla. 4 th DCA 2016): A court has jurisdiction to establish the biological mother’s maternity pursuant to sec. 86. 011 as the right to parent is a fundamental right. Children have standing to petition for declaration of maternity. Chapter 742 – Determination of Parentage Milagos Castellat v. Lissette Pereira, 42 Fla. L. Weekly D 1804 b (Fla. 3 d DCA 2017): The trial court properly dismissed the former partner’s petition to establish parental rights and visitation. “The former partner is not the birth mother, is not a biological parent and has not adopted the child. And she was not married to the birth mother at the time the child was born. ”