Posted by Nydia Streets of Streets Law in Florida Paternity
When child support proceeding is filed through the Department of Revenue. and a father wants to challenge paternity, can he respond to the petition by requesting DNA testing? If paternity has already been acknowledged by the father, he is not likely to be successful in challenging paternity in this manner. This was an issue in the case DOR v. Gardner, 5D2025-0244 (Fla. 5th DCA July 3, 2025).
Child support for two children had already been established previously via administrative proceedings. The Department of Revenue (DOR) filed a petition to supersede the prior order to add support for a third child. The father responded to the petition by requesting a DNA test of the child. The court granted the request, and DOR appealed by filing a petition for writ of certiorari.
The appellate court granted the writ and quashed the order requiring testing. It reasoned “Father signed a voluntary acknowledgement of paternity for S.G. Doing so created a rebuttable presumption of paternity, which Father could have rescinded within sixty days. See § 742.10(1), Fla. Stat. (2018). But after sixty days, the acknowledgment established Father’s paternity, which he then could challenge ‘in court only on the basis of fraud, duress, or material mistake of fact.’ See id. § 742.10(4). Alternatively, he could have petitioned to disestablish his paternity under section 742.18(1), Florida Statutes (2018). [. . .] Father did none of these things. Under these circumstances— in which he did not rescind his voluntary acknowledgement, later challenge it in court by raising cognizable statutory grounds, or petition to disestablish paternity—his motion for testing in a child support case is akin to a discovery request.”
The court concluded “However, a court may not order genetic testing in a family law case unless the proceedings place paternity in controversy and good cause for testing exists. Silva, 214 So. 3d at 769 (quoting Alletag, 156 So. 3d at 1112). Here, even assuming arguendo that Father’s answer to DOR’s petition was enough to “place paternity in controversy,” see Alletag, 156 So. 3d at 1113, he cannot show “good cause” without alleging and proving fraud, duress, material mistake of fact, or grounds for disestablishing paternity under section 742.18. See State, Dep’t of Rev. ex rel. Chambers v. Travis, 971 So. 2d 157, 161 (Fla. 1st DCA 2007). Moreover, the court “made no finding of ‘good cause’ in the challenged order nor was there any testimony or evidence presented that could have supported such a finding.” See Silva, 214 So. 3d at 769. Thus, even “if construed as a discovery order, it was improvidently entered.” See id. Therefore, we grant DOR’s petition and quash the order granting scientific paternity testing. See id.”
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