Disestablishment of Paternity
Sometimes, especially in rocky familial situations, a man later discovers that he is likely not a child’s biological child. To challenge a paternity designation or a child support order, the legal father should retain the services of an experienced attorney.Biological and Legal Fathers
One important thing to understand when considering disestablishment of paternity is the difference between a biological and a legal father. A child’s biological father is the man who physically fathered the child. The biological father’s identity can be determined by genetic testing.
A legal father is not necessarily the same person as the biological father. Rather, the legal father is the man who has the responsibilities toward and rights in the child, as a parent. There are three ways to become legal father in Florida:
- By being married to the mother at the time of the child’s birth;
- By both parents agreeing that he is has legal responsibility for the child; and
- By court order.
If a legal father believes that he is not a child’s biological father, he may file a petition to disestablish paternity. The petition can also be to terminate child support. In order to be permitted to file, the father must have newly discovered evidence regarding the child’s paternity that has been discovered in the time since paternity was established or a child support obligation ordered. Evidence may include genetic testing or statements as to the child’s parentage made by the mother or another party.
A legal father must also include genetic testing with the affidavit. He must be able to show, using standard, accepted testing methods, that he is likely not the child’s biological father. If the mother does not permit the legal father to obtain a sample of the child’s DNA for testing, then the father may submit a sworn statement that he was unable to obtain the sample. He may also request the court to order genetic testing.
Additionally, the father must demonstrate that he is current on or in substantial compliance with all child support payments. If any payments are overdue, the father should include an affidavit explaining why.Granting the Petition
For a court to grant the petition to disestablish paternity, it must find that:
- There is newly discovered evidence regarding the child’s parentage;
- Genetic testing indicates that the legal father is not the biological father;
- The father is current on his child support payments;
- The legal father has not adopted the child;
- The child was not conceived by artificial insemination during the marriage of the legal father and the mother;
- The legal father did not prevent the biological father from asserting his parental rights; and
- The child was under the age of 18 at the time of filing the petition.
Sometimes, the petition for disestablishment will be denied. There are several various reasons that a court would deny a petition, including that the legal father:
- Made a sworn statement that he was the child’s biological father;
- Signed a voluntary acknowledgement of paternity form; or
- Married the mother and indicated to others that he was the child’s biological father.
Disestablishment of paternity works prospectively only, so there will be no refund on any child support payments made before filing. Additionally, all the former father’s rights and responsibilities toward the child will be terminated.
If you believe that your legal child may not be yours biologically, please contact West Palm Beach family law attorney William Wallshein for a free initial consultation.