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Disestabishing Paternity Requires Strict Statutory Compliance

Fort Lauderdale divorce attorneys can file a petition to disestablish paternity and terminate a child support obligation if a male is not the biological father of a child. The petition must contain an affidavit that newly discovered evidence has become available since the original paternity or child support determination and an affidavit acknowledging that the child support obligation is current or has been substantially complied with and that any arrearage is a result of inability for just cause to pay the child support. Last but not least, a Broward marital and family law lawyer must plead that scientific paternity tests administered within 90 days prior to the filing of the petition prove that the male is not the biological father. Alternatively, an affidavit can be filed advising the court that the mother has prevented access to the minor child and that the court should order all interested parties to submit to DNA testing.

In Aulet v Aulet, the former husband appealed the Miami trial court’s order that dismissed his petition to disestablish paternity and terminate child support as a result of his failure to include scientific paternity tests administered within 90 days prior to the filing of the petition. The former husband was the father of three minor children pursuant to the final judgment of dissolution of marriage entered in December 2003. On April 5, 2007 and May 1, 2007, he had two DNA tests performed on one of the children. The DNA testing results revealed that there was a 0% chance that he was the biological father of one of the minor children.

The former husband’s petition did not contain an affidavit stating that he did not have access to the minor child to perform the DNA test within 90 days prior to the filing of the petition or that the trial court should order DNA testing of the minor child. Rather, the former husband alleged that that former wife refused to allow him access to the minor child since May, 2007. In affirming the decision of the Miami-Dade divorce and paternity court, the Third District Court of Appeal held that the plain language of Florida Statute 742.18 mandates that when a movant relies upon DNA tests administered prior to the filing of a petition, the tests must have been administered within 90 days prior to the filing of the petition.