Sample Essay Question (Disestablishment of Paternity)
Sindy and Billy Joe were married in 1997 and are residents of Pinellas County, Florida. Sindy gave birth to a little girl named Hope in 2000. Billy Joe had no reason to believe he was not the biological Father of Hope and he was named as Hope’s father on her birth certificate.
Billy Joe did not know that Hope was conceived when Sindy had a fling with Bob, the pool boy, while the couple vacationed at Club-Red in Alabama.
Sindy filed a petition for dissolution of marriage in 2003 and sought the Court designate her as primary residential parent of Hope and to award her child support.
Billy Joe filed a verified answer and counter-petition acknowledging Hope was the parties’ child, and sought sole parental responsibility of Hope, alleging Sindy was “an alcoholic” and “prone to blackouts during the marriage.”
After Billy Joe’s answer/counter-petition was filed, Bob, the pool boy, attempts to intervene in the suit claiming he is the biological father of Hope. The Court granted the Wife’s motion to dismiss Bob, the pool boy, from the suit and denied Bob’s claims and ruled “Billy Joe is the subject child’s legal father, based on Florida’s presumption of legitimacy. As such, Bob had no standing to seek parental rights to a child born during an intact marriage”.
After more contentious litigation, the Court acknowledged that the Wife was habitually addicted to alcohol, but reasoned that Sindy had shielded Hope from the consequences of her alcohol addiction, and that despite Sindy’s shortcomings, she was the better of two bad choices to care for this child. As a result, the trial court entered a final judgment on February 14, 2006 granting Sindy and Billy Joe shared parental responsibility of Hope, designated Sindy as primary residential parent, and required Billy Joe to pay Sindy $1,000 per month in child support consistent with Florida Child Support Guideline No party, including Bob, the pool boy, sought appellate review of the final judgment.
A few months after Billy Joe received the final judgment, he had an exchange with an intoxicated Sindy who blabbed about the affair with Bob and bragged Billy Jo got “stuck paying for a child that is not his”.
It finally dawns on Billy Joe that Hope may not be his child. Billy Joe fails to take immediate action on his hunch until he comes to you for a consultation on February 13, 2007 and states his case and also tells you that 6 months ago he obtained a paternity test confirming his suspicion that he is not the biological Father of Hope.
During the consultation, Billy Joe states he is not current in his child support, but that “there are reasons for that.”
Billy Joe is very frustrated that he has been duped and does not want to pay the child support that is owed. Billy Joe wants a rebate of the child support he has paid and wants to stop all future child support payments. He also wants to maintain his relationship with Hope and have visitation with her based on the relationship he has developed under the “false pretense” (as he describes) that he was Hope’s biological Father.
Billy Joe is also concerned about Bob the pool boy and what kind of trouble Bob can cause for him in the future.
UNDER THE FOREGOING FACT PATTERN, WHAT ADVICE WOULD YOU GIVE THE MOTHER ABOUT HER LEGAL OPTIONS. THERE IS NO CORRECT ANSWER; RATHER, YOU WILL BE GRADED ON YOUR RECOGNITION OF THE LEGAL AND FACTUAL ISSUES RAISED BY THE MOTHER’S PREDICAMENT; AND YOUR ABILITY TO ANALYZE THOSE ISSUES TO A REASONED CONCLUSION. The citation of specific authority is not required; however, you must demonstrate a knowledge of an ability to apply the appropriate legal concepts arising from statute and case law.
Sample Essay Answer
The question involves the new “Disestablishment of paternity or termination of child support obligation” statute. Florida Statutes, Chapter 742.
This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.
To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation. The petition must be served on the mother or other legal guardian or custodian of the child.
In this case, the child support obligation was NOT determined administratively so the petition DOES NOT have to be filed in the circuit court where the mother resides and need not be served on the Department of Revenue. However, it must be filed in a court that has jurisdiction over the child. In the case at hand, the only county where the case could be filed is Pinellas County.
The petition must include:
(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
In the case at hand, it could be argued that Billy Joe had reason to know Hope was not his biological child based upon Bob the pool boy’s attempt to intervene. Billy Joe will argue of course that it wasn’t until Sindy’s post-judgment drunken admission. This is an evidentiary matter that will have to be decided by the Court.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition.
In the case at hand, Billy Joe’s paternity test is over 90 days old. He will either need a new test if he has access to the child or request the Court to order the test if he does not have access.
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.
In the case at hand, Billy Joe is not current with his child support obligation. During the consultation the reason for the arrearage must be determined. If it’s due to Billy Joe’s inability, the case may proceed. If not, he has to bring the support current.
The law provides, the male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child.
In the case at hand, Bob the pool boy attempted to intervene in the original pleadings. However, Billy Joe did nothing to prevent him from asserting his parental rights. The motion to dismiss Bob the pool boy was filed by Sindy.
The law provides a court shall not set aside the paternity determination or child support order if the male engaged in the following conduct after learning that he is not the biological father of the child:
Exceptions that would preclude the disestablishment of paternity (however, none of them apply to the case at hand).
“In the event relief is granted pursuant to this section, relief shall be limited to the issues of prospective child support payments and termination of parental rights, custody, and visitation rights. The male’s previous status as father continues to be in existence until the order granting relief is rendered. All previous lawful actions taken based on reliance on that status are confirmed retroactively but not prospectively. This section shall not be construed to create a cause of action to recover child support that was previously paid.” Florida Statutes, Section 742.18(6) provides “The duty to pay child support and other legal obligations for the child shall not be suspended while the petition is pending except for good cause shown. However, the court may order the child support to be held in the registry of the court until final determination of paternity has been made.”
In the case at hand Billy Joe is not entitled to recoup back child support as it will only provide relief as to “prospective child support payments”. Depending on Billy Joe’s current financial or other circumstances, he can petition for temporary child support abatement pending final hearing.
It should be noted if the petition is denied, the court shall assess the costs of the action and attorney’s fees against the petitioner.
As for Billy Joe wanting to continue a relationship with Hope, if he disestablishes paternity he will lose all parental responsibilities and rights of visitation. If he wants to ensure visitation, he must not proceed with this action.
As for trouble that can be caused by Bob the pool boy, not much. Apparently Bob the pool boy attempted to intervene and was denied. See HRS v. Privette, 617 So.2d 305 (Fla. 1993) and Lander v. Smith, 906 So.2d 1130 (Fla. 2005). Since Bob, the pool boy, did not seek appellate review, the trial court’s finding “Billy Joe was the subject child’s legal father, based on Florida’s presumption of legitimacy. As such, Bob had no standing to seek parental rights to a child born during an intact marriage” is now the rule of the case. If paternity is disestablished by Billy Joe, it is still unclear whether Bob the Pool Boy could come back to Court as Florida Statutes, Section 742.18(9) provides: “The rendition of an order granting a petition filed pursuant to this section shall not affect the legitimacy of a child born during a lawful marriage.”
The only time limitation in an action for disestablishment is that it must be filed before the child’s 18th birthday. So, for the most part, the dates and the fact that Billy Joe seeks a consultation 1 day before the judgment turns a year old is irrelevant. Aside from a proceeding under Florida Statutes, Chapter 742, Billy Joe could file seeking relief from final judgment under Florida Rules Civil Procedure, Rule 1.540 based upon fraud. However, the most appropriate way for Billy Joe to seek disestablishment is an action pursuant to Florida Statutes, Section 742.18.