The Role of DNA & Establishing Paternity

Well-Versed Jacksonville Family Law Attorneys

When a child is born out of wedlock in the state of Florida, the mother is presumed to have full parental rights and majority time-sharing or custody while the father must file an action in court to establish his legal rights, or if the parents marry after the child’s birth, and the father acknowledges paternity, then his legal rights are established.

However, in a dissolution of marriage, or divorce action, a child born during the marriage, or acknowledged during the marriage is presumed to be the legal child of the husband. Prior to 2006, a man would have to challenge paternity in the dissolution of marriage action or waive the ability to do so. Now, however, due to changes in the law, courts are at odds on whether or not a man can later challenge paternity. At Owenby Law, P.A., our Jacksonville divorce lawyers are well-versed in handling paternity matters and can assist you if you need counsel.

Challenging Paternity Because of DNA Test Results

Recently, the Second District Court of Appeals determined that a father could challenge paternity in P.G. v. E.W., Fla. Weekly Volume 36, Number 49, D2577-D2579 (Fla. 2d DCA December 9, 2011).

The timeline behind the case consisted of the following details:

  • The child was born in 1994 and the parties married two years later.
  • In 2004, the parties divorced and the husband/father not only acknowledged the child, but also fought for and won majority time-sharing or custody of the child.
  • Five years later, however, the father took the child for a DNA test after the child developed behavioral issues that the father’s family had never dealt with before.
  • The DNA test determined he could not be the biological father of the child. He then filed to disestablish paternity of the child.

The court notes that the parties’ relationship was on and off prior to and around the time of conception for the minor child and that the husband was aware of the possibility that he was not the father prior to the birth, signing the birth certificate, and marrying the mother. The father, however, claims he believed the child was his and that the mother asserted he was the father. The trial court denied the father’s petition stating that the DNA test was not newly discovered evidence and he appealed. The appellate court reversed the trial court and remanded the case.

Keeping the Child’s Best Interest in Mind is Important

The biggest concern is that prior to 2006, the most important factor in such a case would have been the best interests of the child. Is it really in a child’s best interest, especially one with mental or behavioral issues, to tell him or her at age 15 or 16 that the man he or she considers as a father is not? Sadly, with the change in the law, this is no longer a major concern for the court in such a case. Where does this leave the child? At some point, should the parent (mother or father) not be prevented from making such drastic claim?

If the child is of tender age, then it might be easier to understand, however, when a child is in his or her teens and has been raised by the same man for his or her entire life, does that not make that man his or her legal father even if he is not the biological father? Unfortunately, while morally this is reprehensible, legally it has become the norm.

Wish to discuss a DNA-related paternity matter with us? Contact us as soon as possible.