Wednesday, November 30, 2011

Second District Reverses Denial of Petition for Disestablishment of Paternity

The Second District Court of Appeal ruled today in P.G. v. E.W., in so doing reversing the lower tribunal’s denial of the Former Husband’s Petition to Disestablish Paternity.  In reversing, the Second District found first that a primary residential parent or a parent ordered to share in uncovered medical expenses qualifies as a “male ordered to pay child support” within the meaning of Florida Statute 742.18.  Next, the Court found that even a parent who perhaps should have suspected paternity was in question could raise DNA testing results as newly discovered evidence in support of a petition to disestablish.  And, in addition, the Court found that such a parent was not disqualified for any behavior suggested to violate F.S. 742.18(3) prior to receipt of the DNA results.  The Second District acknowledged the clear conflict as to this ruling between this case and Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA October 6, 2011).  Finally, the Court rejected the idea that the primary residential parent continuing to exert parental authority was barred from seeking to disestablish that paternity.  The Second District expressly finds in closing that the 2006 statutory provisions permit a parent to seek this relief where it would have been barred in the past.

8 comments:

Anonymous said...

So what happens with the 2 conflicting cases? Do they reopen the Hooks case and disestablish him due to the fact it was new evidence, or is he stuck and wished that his case had gone to the 2DCA?

Christopher Chopin said...

Unfortunately, the latter. And even if the Supreme Court takes up the conflict, there is no retroactive effect for Mr. Hooks, or anyone similarly situated.

Anonymous said...

So in easier words the young man is stuck taking care of a child that isn't his, but this gentleman signed a certificate of a child that is not his and used a condom. Mr Hooks probably honestly thought the child was his! This sounds like a very odd case that hopefully should get picked up, because there is something very odd when reading and putting a little more thought into the 2.

Christopher Chopin said...

In Florida, and many other states, men are often required to continue to act as parents for children that turn out not to be theirs, including the payment of support. If you review Florida Statute 742.18, you will see that the burden to disestablish paternity is always on the Father, and is only permitted in limited circumstances. And under Lord Mansfield's rule, a married man whose wife fathers a child by another man is exceptionally limited in any attempt to disestablish that paternity. This is purportedly done in the best interest of the child. Remember, as well, there are also the rights to consider of the man who thinks he is the father of a child and finds out, sometimes seventeen years later, that he is in fact not. Unfortunately Florida does not take such a person into account. on Second District Reverses Denial of Petition for Disestablishment of Paternity

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