Posted by Nydia Streets of Streets Law in Florida Paternity
Can a father request a DNA test at any time in Florida? The simple answer is no. Once a father acknowledges paternity by affidavit and he does not rescind that acknowledgement within 60 days, his paternity is confirmed and can only be challenged on grounds of fraud, duress or material mistake of fact. This was an issue in the case Dept. of Rev. o/b/o Zelaya v. Trochez, 3D22-0795 (Fla. 3d DCA August 3, 2022).
The parties were in a relationship which produced a child. The father apparently signed an affidavit acknowledging paternity at the child’s birth, and six years later, he filed a petition seeking to confirm his paternity. At the same time, he requested DNA testing to confirm that he was biologically related to the child. The Department of Revenue intervened on behalf of the mother seeking to collect past-due child support, and the court ordered the child to undergo testing. The Department of Revenue appealed by filing a petition for a writ of certiorari.
The appellate court noted “It is well-established that ‘no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy’ and (2) ‘good cause’ exists for the testing.’” The writ was granted with the court holding “Under the applicable statutory scheme, the presumed father was required, at a minimum, to raise allegations of fraud, duress, or mistake of fact, or communicate his intent to disestablish paternity. He did neither, and the court failed to find the testing was in the best interests of the child. In view of these omissions, we find that the challenged order runs afoul of the essential requirements of the law.” The court continued “Given the intrusive nature of the compulsory testing, we further conclude that the departure results in harm that cannot be remedied on plenary appeal.”
Schedule your consultation with a Miami family law attorney to determine the best way to proceed in light of the factors in your case.