It can be an unfortunate series of events that leads parents to seek a
way to disestablish paternity, but it can happen. If an unmarried couple
has a child, the child’s paternity will need to be established at
birth, either voluntarily or through genetic testing. Once paternity is
established, the father has an obligation to support and provide for the child.
If the father decides to stop sending the mother money to support the child,
she may take legal action against him, and seek a formal court order of
child support. This order will force the father to continue to pay support,
even if learns the child is not be his. To get out of child support payments
for a child that isn’t his, it will become necessary to reverse
the establishment of paternity.
Legal Paternity vs. Biological Paternity
Depending on the field, paternity can have several meanings. According
to biology, paternity means that you have physically fathered the child
and are genetically related to the child. This can be proven through genetic
testing. A man who is related to a child in this way is the “biological
Legally, however, the definition is slightly different. Legal paternity
refers to the person who has the rights and responsibilities of a parent
to the child. While he may not be the biological father, the legal father
is responsible for the child’s care and upbringing, has rights to
see the child, and has established a parental relationship with the child.
Legal paternity is determined in one of four ways:
Marriage, if the mother and legal father are married at the time of the child’s birth.
Consent, if the mother and legal father agree that he is legally responsible.
Court order, if the court or another agency determines legal fatherhood.
Paperwork, if the legal father signs the child’s birth certificate or affidavit
The biological father is not necessarily the legal father. This can happen
for a number of reasons, including adoption, use of a sperm donor, stepparent
adoption, or even deception or mistaken filing of paternity.
The Process of Disestablishment of Paternity
In order to disestablish paternity, you must demonstrate that there is
a reason to believe you are not the father of your child. To start the
process, you will need to file a petition to disestablish paternity, as
well as terminate child support orders if they exist. You must also inform
the mother of the child by serving her a copy of the petition. If you
have a child support order, you should also send a copy of the petition
to the Department of Revenue.
In your initial filing, you must include:
- An affidavit explaining your reason for disestablishing paternity. In it,
you will detail any newly discovered evidence that has come to light after
paternity was first established or a child support order was issued. This
evidence may include genetic testing results, statements or comments made
by the mother, or information provided by other persons.
- The results of a genetic test that shows the legal father is most likely
not the biological father. The test results must be due to a generally
accepted form of testing within the scientific community. If you are unable
to have genetic testing performed due to the mother’s interference,
you must include a sworn statement that you were unable to obtain a DNA
sample from the child. You may also request that the court orders a genetic test.
- A sworn statement regarding child support payments. Your payments must
be current to disestablish paternity, or you must provide sound explanation
for past due payments and evidence of attempting to “substantially
comply” with payments.
When the appropriate information has been submitted and testing has been
done, the court will carefully examine the evidence and make a decision
regarding the case. Often, the court will want to ensure that it is in
the child’s best interests to disestablish paternity as well.
If the court supports your petition and allows for your paternity to be
disestablished, you will be free of your obligations moving forward. Previous
support cannot be refunded or returned. Should your petition be granted,
your parental rights will be terminated, and your will no longer be able
to make decisions regarding the child’s care.
Legal Issues Faced in Disestablishment of Paternity Cases
Under section 742.18 of the Florida Statutes, there is a mechanism to allow
a legal father to disestablish paternity and avoid any further obligations
to the child. It is not required that there be another putative father
who is willing to establish paternity in his stead.
In a 1993 ruling on Department of Health and Rehabilitative Services v.
Privette, the court determined that a child’s best interests must
be served by a blood test before it can be ordered to establish paternity
in cases where the child is considered to be born legitimate. This ruling
has been used to support other rulings where the child’s birth was
not considered legitimate, however, this application of the ruling goes
against the provisions of section 742.18.
It is now held that the Privette “best interests” inquiry can
only apply in cases where the child faces the threat of being declared
illegitimate, and when the legal father also faces the loss of the parental
rights he is seeking to maintain. In cases such as these, it may be the
mother who is attempting to remove the father from his position.
Let Our Jacksonville Family Lawyers Help - (904) 770-3141
Paternity can be a complex legal issue, and it may not always be as straightforward
as it seems. At Owenby Law, P.A., we are backed by more than a decade
of collective legal experience, and have helped thousands of clients through
their challenging family law cases. Our knowledgeable Jacksonville family
law attorneys can be an aggressive advocate for your case and provide
you with strategic legal counsel for your case.
Discuss your case with our team today! Schedule a complimentary 30-minute
consultation to begin your case. Contact our offices online, or call (904) 770-3141.