I wrote an earlier post about watching the judge almost order child support payments for a guy who was not the father of the child. It happens more often than it should that child support payments are ordered for a guy who is not the father of the child. This often occurs when the alleged father chooses to not participate after being served with court paperwork or he was not available to appear in court during the process when child support was ordered. This is a way to disestablish paternity to end child support payments that I will discuss below.
The specific requirements to disestablish paternity or terminate child support are stated in Florida Statute 742.18. First, the male must file a Petition to Disestablish Paternity in the appropriate circuit court having jurisdiction over the case. The petition must include an affidavit signed by the male stating the newly discovered evidence that exists after the child support was ordered. Secondly, the male must submit DNA test results or request the mother submit the child for a DNA test. Third, the male must be current on all child support payments or prove an inability to pay the child support payments that were already ordered.
The newly discovered evidence requirement can be difficult, if not legally impossible to satisfy, if the male voluntarily acknowledged paternity. When a male knows there is a chance he is not the father of the child and he chooses not to have a DNA test, he can be prevented from challenging the paternity and terminating child support later. See Hooks v. Quaintance, 71 So. 3d 908 (Fla. 1st DCA 2011). In Hooks, the Court held that his refusal to test the child before acknowledging paternity meant that the father did not exercise due diligence. Id. When the male later found out he was not after a DNA test, the Court held that was not new evidence and denied his petition to disestablish paternity.
In another case, the male married the mother after the child’s birth but did not suspect he was not the father of the child until the child had a mental health issue that caused him to question whether he was the father. See P.G. v. E.W., 75 So. 3d 777 (Fla. 2d DCA 2011). The court held this was newly discovered evidence because the medical condition was a new circumstance that caused him to question paternity. Id. Newly discovered evidence means evidence that was unknown at the time child support was ordered, not evidence that later became verified with DNA testing.
Also, the requirement of full payment of child support can be problematic to resolving an erroneous order of child support. If the male was not aware of the child support award, there is often a large amount of money owed. If the male cannot pay a lump sum to satisfy the full amount, the amount owed continues to accrue interest until it is paid. Filing the petition to disestablish child support does not halt any child support payments. All money must be paid or prove inability to pay (voluntary unemployment does not constitute an inability to pay) before the petition can be ruled upon by a judge.
If the mother of the child fails or refuses to make the child available for DNA testing, that can be grounds to have the petition granted in the male’s favor. However, before this can occur, the male must still satisfy the other requirements to petition the court to disestablish paternity.
The statute has a list of factors that can prevent a judge from disestablishing paternity. They are as follows:
- The evidence was not newly discovered.
- The DNA testing was not properly conducted.
- The male is not current on his child support obligations or has not shown an inability to pay.
- The male has adopted the child.
- The child was conceived through artificial insemination while the male and the child’s mother were married.
- The male prevented the biological father of the child from asserting his paternal rights to the child.
- The child was older than 18 years of age when the petition was filed.
A judge can also deny the petition to disestablish paternity if, AFTER learning that he is not the biological father of the child, the male voluntarily assumes parental responsibility for the child, acknowledged his paternity of the child in a sworn statement, consented to be named as the father on the child’s birth certificate, voluntarily promised in writing to support the child, or receives written notice from any state agency or any court directing him to submit to scientific testing which he disregarded.
If the male is successful in disestablishing paternity and ending child support, he does not get a refund of the child support payments that were already paid. The judge simply stops any future payments from being ordered. Also, if there was any arrears from previously ordered child support, the male is still required to pay them. In short, when it comes to issues concerning paternity and child support, it is better and cheaper to have a DNA test before child support is ordered or the male may be stuck paying for a child that is not his child.