Posted by Nydia Streets of Streets Law in Florida Paternity
If DNA testing shows a male is not related to a child, does this mean the male is not the legal father of the child? If the male is listed on the birth certificate, he is the legal father until otherwise determined. Biological connection is not the determining factor in establishing legal parenting rights over a child. This was an issue in the case N.D. v. J.B., 2D23-686 (Fla. 2d DCA March 15, 2024).
The parties were in a long-term relationship during which a child was conceived and born. The father was listed on the birth certificate and he maintained a relationship with the child until the mother stopped his time-sharing. After this, the father filed a petition to establish paternity in response to which the mother requested DNA testing. The testing revealed the father was not biologically related to the child. The mother then moved to dismiss the petition, citing the Florida Statutes’ provision which states if DNA testing shows no genetic relation, the petition must be dismissed. Relying on this, the trial court reluctantly dismissed the petition with prejudice. The father appealed.
The appellate court reversed, holding the trial court relied on the wrong part of the Florida Statutes and ignored the father’s standing as a legal parent based on him being named on the birth certificate. The court held “[The father] correctly contends that even though the DNA test results revealed that he is not the biological father, he is entitled to the presumption that he is the legal father because he was named as the child's father on the birth certificate. Section 742.10(1) provides that if an affidavit acknowledging paternity is executed by both parties, witnessed, and signed under penalty of perjury, a rebuttable presumption of paternity is created. Either party has the right to rescind the acknowledgment within sixty days. Id. If not rescinded within the sixty-day period, the voluntary acknowledgment of paternity ‘shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.’ § 742.10(4). Because the parties did not rescind the acknowledgement within sixty days, N.D.'s paternity was established by operation of law. Thereafter, N.D. ‘was neither required nor permitted to take action under chapter 742 to further establish his paternity.’”
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