Posted by Nydia Streets of Streets Law in Child Support
Once a man finds out he is not the father of a child for whom he is ordered to pay child support, he may be able to file a petition to disestablish paternity in order to cancel his child support obligation. Certain requirements must be met in order for the court to grant the petition. The case DOR v. MJM, 217 So.2d 1148 (Fla. 2d DCA 2017) sheds light on how a Florida family court interprets those requirements.
The father in this case filed a petition to disestablish paternity 7 years after being ordered to pay child support. He testified that he knew he might not be the father of the child since he and the mother were broken up during the period of conception. Nonetheless he did not file his petition until the mother admitted to him he was not the father and a subsequent DNA test proved the same. After a hearing, the trial court granted the father’s petition disestablishing paternity and cancelling his Florida child support obligation.
The Department of Revenue (DOR) appealed, arguing (1) evidence of the father’s non-paternity was not newly discovered since the father testified he knew he was not the father of the child when paternity was first established; (2) the father did not file the petition within 90 days of the DNA test he was relying on; and (3) the court did not find that the father substantially complied with his child support obligation or that just cause existed for his failure to pay support.
The appellate court denied the appeal on grounds (1) and (2), reasoning the father’s feeling that he was not the father was not evidence - the actual DNA test and the mother’s admission were actual evidence that came about after paternity was established, and the father could rely on this to proceed. The court further held the father’s failure to file within 90 days of the DNA test result did not bar him from filing his petition - this is a technicality which should not bar relief. Plus the statute does not state a claim is barred for failure to file within the 90 days. On ground (3) the appeal was granted, however, and the trial court was instructed to take evidence and make findings as to the father’s failure to pay support.
The key to success on a Florida petition to disestablish paternity is to act quickly when evidence arises showing a male is not the father of the child. Contact a Miami paternity lawyer to discuss your case for specific advice on how to proceed.