The Presumptions of Privette: Have They Perished with the Coming of Daniel and Disestablishment of Paternity
The Florida Supreme Court, in Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305, 307 (Fla. 1993),
and again much more recently in Parker v. Parker, 950 So. 2d 388, 394 (Fla. 2007) , has interpreted the due process clause of Fla. Const. art. 1, §9 such that once children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests. The presumption of legitimacy, although rebuttable, is one of the highest presumptions at law. Many courts across the nation have held that the presumption is so weighty that it can defeat even the claim of a man proven beyond all doubt to be the biological father.1 It is based on the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child.2 & #x201c;This policy is a guiding principle that must inform every action of the courts in this sensitive legal area.”3 Should it matter whether the presumption of legitimacy is challenged by the legal father, the biological father, or the mother of the child? Apparently, it does. Should the burden to overcome the presumption be different depending upon who is challenging it? Apparently, it is.
In addition to addressing the issue of the presumption of legitimacy, Privette further enunciated the standard for granting a request for DNA blood testing to determine if the legal father is the biological father of a minor child. Only after a guardian ad litem has been appointed and the court has heard the argument of the parties, (including the legal father if he wishes to appear), and a finding that the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy, may the court then enter an order for DNA blood testing.4 The burden is one of clear and convincing evidence to be proven by the one seeking the testing.5
This article addresses the issue of a child born during a valid marriage who is not the biological child of the husband, potential dissolution of that marriage, and the legal rights of those involved.
The Daniel Decision
In 1997, the Florida Supreme Court in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), announced a distinction between paternity (or natural lineage) and legitimacy. Daniel holds that a person has no legal duty to provide support for a minor child who is neither his natural nor adopted child, and for whose care and support he has not contracted following dissolution of marriage.6 In Daniel, both parties stipulated that the child born of the marriage was not the husband’s biological child. The trial court, finding that the husband was the legal father, imposed a child support obligation at the time of final judgment. The Florida Supreme Court ruled that just as a child’s natural lineage was unaffected by his or her mother’s marriage to a person other than the child’s natural father, the child’s legitimacy would similarly not be affected by a determination of paternity with someone other than her husband (and orders of support following such determination).7 This distinction is difficult to reconcile, especially when a bastard, by definition, is
an illegitimate child; children who are not born either in lawful wedlock or within a competent time after its termination; a child of a married woman conceived with one who is not the husband of the mother; a child born out of lawful matrimony or born to a married woman under conditions where the presumption of legitimacy is not conclusive and has been rebutted.8
In addition, the Florida Supreme Court in Daniel narrowed the application of Privette to “those instances where a child faces the threat of being declared illegitimate, and the ‘legal father’ also faces the threat of losing parental rights which he seeks to maintain,” and the matter involves contested paternity with the request for blood tests or similar genetic testing. 9 Having found that legitimacy is distinguishable from paternity, under the Daniel holding, it is unlikely that there are any circumstances under which a child born of a marriage can be deemed illegitimate. Additionally, as a biological father has no standing to bring an action seeking a determination of paternity for a child born during an intact or valid but dissolved marriage,10 there are few, if any, circumstances in which a legal father (husband or former husband) faces the threat of losing parental rights which he seeks to maintain. The prevailing law in Florida is that the putative father has no right to seek to establish paternity of a child born into an intact marriage when the mother and her husband object.11 The presumptions of Privette are substantially eroded.
Seeking Relief from the Judgment Prior to the Enactment of F.S. §742.18
Prior to the enactment of the disestablishment of paternity statute, F.S. §742.18 (2006), a male ordered to pay child support was required to make a showing of fraud in order to obtain relief from the judgment under Florida Rule of Civil Procedure 1.540. The issue of paternity in a dissolution proceeding was considered res judicata. The question became whether the mother’s false testimony or misrepresentation that the husband was the father of the child(ren) born during the marriage constituted intrinsic fraud or extrinsic fraud. Intrinsic fraud relates to “fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried,”12 and invokes the one-year limitation imposed by Rule 1.540 for bringing a motion for relief from judgment.
Extrinsic fraud, by contrast, does not invoke the one-year time limitation and involves conduct which is collateral to the issues to be tried in a case. Extrinsic fraud is conduct which prevents a party from trying the case and bringing the issues before the court. This prevention itself becomes a collateral issue to the cause.13 Extrinsic fraud is considered fraud upon the court.14 A request for relief as a result of intrinsic fraud is brought by way of motion in the original action, while a request for relief as a result of extrinsic fraud is brought by an independent action, separate and apart from the original judgment, to attack the judgment and relieve a party from its terms.15 The district courts of appeal in Florida were in conflict as to whether a wife’s misrepresentation or false testimony concerning the husband’s parentage of children born during the marriage constituted intrinsic fraud or extrinsic fraud.16
The Florida Supreme Court in Parker v. Parker, 950 So. 2d 926 (Fla. 2007), resolved the conflict concerning intrinsic versus extrinsic fraud based upon the misrepresentation or false testimony of the wife that the husband was the father of children born during the marriage. The court held the misrepresentation to be intrinsic fraud, thus, invoking the one-year limitation imposed by Rule 1.540(b) for relief from the judgment.17 The determination of parentage in the final judgment of dissolution of marriage was res judicata, as the husband’s request for relief was brought outside of the one-year period. The court reasoned that because the wife’s false representation was concerning “an issue that could have been raised in the dissolution proceedings, rather than an issue collateral to those proceedings,”18 the misrepresentation constituted intrinsic fraud.19 The Parker decision was rendered following the enactment of the disestablishment of paternity statute. Decided on other grounds, the court acknowledged the existence of F.S. §742.18, but did not consider or apply the statute in its opinion. While not specifically addressing the presumption of legitimacy (except to defer to the legislature), the Parker court did, however, address the best interests of the child, stating “the current balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.”20 The Parker court protected those interests. Parker did not mention or follow the line of cases holding that a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted.21
The Disestablishment of Paternity Statute, F.S. §742.18
The presumptions of Privette were further notably eroded with the enactment of the disestablishment of paternity statute, F.S. §742.18, effective June 20, 2006. The statute provides that a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. The statute is not limited to paternity actions and specifically includes termination of child support obligations. It is, therefore, applicable to Ch. 61 proceedings. The statute provides specific circumstances and procedures for the granting or denial of such relief. In essence, the statute provides that if a DNA test proves that the male paying child support or who has been determined to be the father of a child pursuant to a final judgment of paternity is later deemed not to be the biological father of the child, prospective obligations of child support, parental rights, custody, and visitation can be terminated.22 Only a male can bring an action under the statute. The mother cannot do so.
The petition to disestablish paternity must be verified or accompanied by an affidavit and contain specific allegations, including 1) the petitioner has newly discovered evidence relating to the paternity of the child and petitioner learned of this information following the initial paternity determination or child support obligation;23 2) DNA testing results administered within 90 days prior to the petition showing that the petitioner cannot be the biological father of the child in question or that the petitioner does not have access to the child to conduct such testing;24 and 3) the petitioner is current on all child support payments relating to the child in question, or if an arrearage or delinquency exists, that it is the result of inability, for just cause, to pay the ordered support.25 The mandates of the statute require strict compliance for relief to be granted.26 A showing of fraud under Rule 1.540 is no longer required,27 but the statute does not preclude an action under the rule.28
In order to grant the requested relief, the court must make specific findings of fact relating to the allegations in the petition. In addition, the court must find that the scientific testing was properly conducted, the petitioner has not adopted the child, the child was not conceived by artificial insemination while the male was married to the mother, the petitioner did not act to prevent the biological father from asserting parental rights, and that the child has not yet reached the age of majority.29
Relief under the statute is precluded if the petitioner engages in certain conduct after learning that he is not the biological father of the child.30 If relief is denied, the court must assess attorneys’ fees and costs against the petitioner.31
Child support is not suspended during the proceedings; however, the court may order that child support payments be held in the registry of the court pending final determination.32 Relief is prospective only, and the court may not cancel or reduce past child support obligations retrospectively as arrearages are ordinarily a vested right of the child.33 The petitioner has no cause of action to recover child support previously paid.34
The disestablishment of paternity statute does not require or even suggest the appointment of a guardian ad litem to determine the best interests of the child. The Privette standard for determining whether DNA testing should be ordered in a post-judgment proceeding is, in effect, abolished. Further, DNA testing may be conducted while the questioning parent has access and contact with the child.35 Accordingly, the testing may be conducted by the support-paying male without the knowledge or consent of the mother.
Any former husband and legal father who suspects that he is not the biological father of a child born during a marriage can now escape the best interests standard imposed by Privette and the appointment of a guardian ad litem. He simply waits until after entry of the final judgment of dissolution of marriage, takes the child for DNA testing during timesharing, and then files a request for relief under F.S. §742.18 to disestablish paternity. This procedure, thus, emasculates the underlying public policy considerations in Privette. The former husband who employs this procedure will, however, run afoul of the mandates and parameters of shared parental responsibility by making the unilateral decision to undertake the DNA testing. In such a situation, what is the child told about the need for the testing? whom is the child told? How will the testing itself affect the child and his relationship with all adults involved? What will be the effect on the child of the test results, whatever they may reveal? Clearly, an absent husband/former husband who has had little or no involvement or timesharing with the child presents an entirely different scenario than the former husband who has been actively involved in the child’s life for several years and has enjoyed substantial timesharing. The harsh reality of the statute is the same in either scenario. No consideration has been given within the statute to the length of the legal father/child relationship, the amount of timesharing, the amount of involvement by the legal father in the child’s life, or the quality of the parent/child relationship.
The disestablishment of paternity statute codifies the Daniel decision and provides that if the relief is granted, the legitimacy of a child born during a marriage shall not be affected.36 However, a new birth certificate will be issued which delineates the name of the new male ordered to pay child support, if any and if known, as the father of the child.37 Only upon the request of the mother, legal guardian, or custodian of the minor child may the court then consider a request to change the child’s surname, and only as to this issue is a best interest standard applied.38
It is conceivable that a man who has established a loving, caring relationship of some years’ duration with his legal child will later prove not to be the biological father. Where this is so, it seldom will be in the children’s best interest to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.39
The law has now changed.
While some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present. . . . The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.40
The children of our society have certain rights as guaranteed by our constitution. Perhaps the disestablishment of paternity statute is unconstitutional based upon art. 1, §9 of the Florida Constitution and the cases in this setting interpreting this section. Children born during a valid marriage have a right to maintain the status of legitimacy, both factually and legally if doing so is in their best interests. Perhaps the statute presents equal protection issues. It is gender-biased, as only males can bring an action to disestablish paternity. There are many benefits flowing from the sanctity of marriage. When it comes to the best interests of children born of that marriage, should there not be risks for the adults involved? What are we telling our children about their parentage and legitimacy and the mores and values of our society? Do they not have a right to know the husband of their mother at the time they were born as their true father? The laws have changed and so have societal values when it comes to our children.
1 See Privette, 617 So. 2d at 308 (internal citations omitted).
2 Id. at 306-08. See also Sacks v. Sacks, 267 So. 2d 73, 76 (Fla. 1972).
3 Privette, 617 So. 2d at 306.
4 Id. at 308.
6 Daniel, 695 So. 2d at 1254.
7 Id. at 1255.
8 Steven H. Gifis, Barron’s Law Dictionary (4th ed., Barron’s Educational Series, Inc. 1996).
9 Daniel, 695 So. 2d at 1255.
10 G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th D.C.A. 1997).
11 Johnson v. Ruby, 771 So. 2d 1275, 1275-76 (Fla. 4th D.C.A. 2000).
12 Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007).
13 DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984).
15 Parker, 950 So. 2d at 392.
16 Parker v. Parker, 916 So. 2d 926 (Fla. 4th D.C.A. 2005) (intrinsic fraud); M.A.F. v. G.L.K., 573 So. 2d 862 (Fla. 1st D.C.A. 1990) (extrinsic fraud).
17 Parker, 950 So. 2d at 393-94.
18 Id. at 392 (citing, Parker v. Parker, 916 So. 2d 926, 930 (Fla. 4th D.C.A. 2005) (internal quotations omitted)).
19 Parker, 950 So. 2d at 393-94.
20 Id. at 394.
21 Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997); Albert v. Albert, 415 So. 2d 818, 820 (Fla. 2d D.C.A. 1982) (parties stipulated the husband was not the biological father of the child); Portuondo v. Portuondo, 570 So. 2d 1338 (Fla. 3d D.C.A. 1990) (step-child); Swain v. Swain, 567 So. 2d 1058 (Fla. 5th D.C.A. 1990) (child was born five years before the marriage of the parties and was fathered by another man); Taylor v. Taylor, 279 So. 2d 364 (Fla. 4th D.C.A. 1973) (wife pregnant at the time of marriage and the parties never engaged in sexual relations during the short-term marriage). It is interesting to note that the results in Daniel, Albert, and Taylor may have been different under the disestablishment of paternity statute in light of the fact that each husband married a pregnant woman with the knowledge that the child was not his. See Fla. Stat. §742.18(3)(a) (2006).
22 Fla. Stat. §742.18 (2006).
23 Fla. Stat. §742.18(1)(a).
24 Fla. Stat. §742.18(1)(b).
25 Fla. Stat. §742.18(1)(c).
26 Dep’t of Revenue v. Young, 2008 WL 4949303 (Fla. 1st D.C.A. 2008); Dep’t of Revenue v. Price, 958 So. 2d 1045 (Fla. 2d D.C.A. 2007).
27 Johnston v. Johnston, 979 So. 2d 337 (Fla. 1st D.C.A. 2008).
28 Fla. Stat. §742.18(11).
29 Fla. Stat. §742.18(2)(a)-(g).
30 Fla. Stat. §742.18(3)(a)-(f).
31 Fla. Stat. §742.18(10).
32 Fla. Stat. §742.18(6).
33 Fla. Stat. §742.18(5); Fernandez v. Dept. of Revenue, 971 So. 2d 875, 877 (Fla. 3d D.C.A. 2007).
34 Fla. Stat. §742.18(5); See Parker v. Parker, 950 So. 2d 388, 395 (Fla. 2007).
35Fla. Stat. §742.18(1)(b). If the DNA test results are provided solely by the male ordered to pay child support, the court may, on its own motion and shall, upon the motion of any party, order retesting. Fla. Stat. §742.18(7)(a).
36 Fla. Stat. §742.18(9).
37 Fla. Stat. §742.18(8).
39 Privette, 617 So. 2d at 309.
40 Parker, 950 So. 2d at 394 (quoting, Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Poly. 269, 275 (2001)).
Susan W. Savard is an associate of Michael R. Walsh, P.A., in Orlando. She received her B.S. from Thomas Edison University (2001, academic honors) and her J.D. from Barry University School of Law (2005, magna cum laude). She is a member of the Central Florida Family Law American Inn of Court, The Collaborative Family Law Group of Central Florida, the Orange County Bar Association (Family Law Executive Committee officer), and is actively involved in The Florida Bar Family Law Section.
This column is submitted on behalf of the Family Law Section, Scott Rubin, chair, Laura Davis Smith, editor, and Patricia Kuendig, special editor.