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Presumption Of Legitimacy

  1. F.S. 382.013 provides that the birth certificate serves as a legal document indicating an initial determination of paternity for all children born during a marriage.
  2. F.S. 741.10 provides for a voluntary acknowledgment of paternity. Paternity may also be voluntarily acknowledged by signing an affidavit along with the birth certificate. This creates a rebuttable presumption of paternity.

Judicial And Administrative Proceedings

F.S. 742. 011 provides that any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court to determine the paternity of the child when paternity has not been established by law or otherwise.

Note that scientific testing to determine paternity can be ordered by a court on its own motion or can be compelled by one of the parties. Blood tests are not automatically admissible. See F.S. 742.12 regarding blood tests.

The Best Interests Of The Child Is Controlling

Case law interpreting the above statutes provides that once children are born legitimate, they have the right to maintain that status. In cases where one party trying to question the legitimacy of the child it must be proven by clear and convincing evidence that it is in the best interests of the child to overcome the presumption of legitimacy.

Custody And Support

The issues of custody and support of an illegitimate child are controlled by the general Florida Statutes regarding shared parental responsibility ( F.S. 61.13) and child support ( F.S. 61.30) The courts generally have the power to order child support and to establish visitation.

F.S. 742.031 provides that if a paternity order is entered without a specific ruling on custody, but the order contains an award of child support or visitation, it is presumed to award primary residential care to the parent receiving support or the parent that was not granted visitation without prejudice.

Dis-Establishment Of Paternity

Florida statute 742.18 provides a detailed procedure by which a male may disestablish paternity or terminate child support. A petition must be filed stating that there is newly discovered evidence since the initial determination of paternity and the petitioner must provide scientific testing results that are less than 90 days old or request in the petition that testing be done and the petitioner must also file an affidavit stating that he is current in his child support or that any delinquency arose from inability to pay for just cause.

The statute goes on to provide a list of factors all of which must be present for the court to make a finding of disestablishment of paternity;

  1. newly discovered evidence has come to light;
  2. the scientific testing was properly conducted;
  3. the male ordered to pay child support is current on all child support payments or that the male ordered to pay child support has substantially complied with his child support obligation and that any delinquency in his child support arose from his inability to pay for just cause;
  4. the male ordered to pay child support has not adopted the child;
  5. the child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;
  6. the male ordered to pay child support did not act to prevent the biological father of the child from asserting his parental rights with respect to the child;
  7. the child was younger than 18 years of age when the petition was filed.The court may not disestablish paternity if the male engaged in the following conduct after learning that he is not the father of the childmarried the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;
  8. acknowledged the paternity of the child in a sworn statement;consented to be named as the child’s biological father on the child’s birth certificate;voluntarily promised in writing to support the child and was required to support the child based on that promise;
  9. received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded;
  10. signed a voluntary acknowledgment of paternity as provided in F.S. 741. 10(4)

Gestational Surrogacy Contracts

If you wish to enter into a contract for gestational surrogacy, you must comply with the provisions of F.S. 742.15 and F.S. 742.16. Basically F.S. 742.15 provides that the surrogate must be 18 years of age or older and that the commissioning couple are legally married and are both 18 or older.

The statute permits these kinds of contracts only when a physician certifies that the commissioning mother cannot carry a pregnancy or the pregnancy will cause a risk to her health or the pregnancy will cause a risk to the health of the fetus.

The contract itself must provide that the surrogate will be the sole source of consent with respect to clinical intervention and management of the pregnancy and that the surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions. The surrogate further must agree to relinquish any parental rights unless it is determined that neither member of the commissioning couple is the genetic parent of the child. The commissioning couple must agree to accept custody and to assume full parental rights and responsibilities for the child immediately upon the child’s birth regardless of any impairment of the child unless neither of them is the genetic parent.

F.S. 742.16 provides that the commissioning couple may petition the court for an expedited affirmation of parental status within 3 days of the birth of the child.

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