House Bill hb1689

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    Florida House of Representatives - 2002                HB 1689

        By the Committee on Judicial Oversight and Representative
    Crow





  1                      A bill to be entitled

  2         An act relating to child support enforcement;

  3         amending s. 61.13016, F.S.; authorizing the

  4         Department of Highway Safety and Motor Vehicles

  5         to suspend driver's licenses and motor vehicle

  6         registrations to enforce compliance with an

  7         order to appear for genetic testing to

  8         establish paternity or paternity and child

  9         support; amending s. 61.1814, F.S.; providing

10         for deposit of fines imposed for failure or

11         refusal to submit to genetic testing; amending

12         s. 120.80, F.S.; providing administrative

13         procedures for proceedings to establish

14         paternity or paternity and child support;

15         amending s. 382.013, F.S.; providing for birth

16         certificate information when the paternity of

17         the child is determined pursuant to an

18         administrative proceeding; amending s.

19         409.2557, F.S.; providing rulemaking authority;

20         creating s. 409.2560, F.S., relating to

21         administrative proceedings to establish

22         paternity, or paternity and child support, and

23         orders to appear for genetic testing; providing

24         definitions; providing for jurisdiction and

25         location of hearings; providing for service of

26         notice of proceedings to establish paternity,

27         or paternity and child support, and orders to

28         appear for genetic testing; specifying contents

29         of notice; providing right to contest an order

30         to appear for genetic testing; providing for

31         scheduling of genetic testing; providing for

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  1         suspension of driver's license and motor

  2         vehicle registration, imposition of an

  3         administrative fine, and orders for child

  4         support and for payment of court and testing

  5         costs for failure or refusal to submit to

  6         genetic testing; providing for disposition of

  7         genetic testing results; providing for a

  8         proposed order of paternity; providing for a

  9         proceeding to establish an administrative

10         support order or for a proposed order of

11         paternity and child support; providing for

12         informal review of a proposed order; providing

13         for an administrative hearing on the proposed

14         order; providing for a final order establishing

15         paternity or paternity and child support;

16         providing for a consent order; providing for

17         notification to the Office of Vital Statistics;

18         providing the right to seek judicial review;

19         providing for the admissibility of genetic

20         testing as evidence; providing applicability of

21         statutes to the mother of a child whose

22         paternity has not been established; providing

23         that the remedies provided are in addition to

24         other remedies available for establishment of

25         paternity and child support obligations;

26         providing rulemaking authority; amending s.

27         409.2563, F.S.; revising and conforming

28         provisions relating to the administrative

29         establishment of child support obligations;

30         authorizing the Department of Revenue to

31         suspend or terminate an administrative support

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  1         order prospectively; providing for evaluation

  2         of the administrative process; providing for

  3         statewide application of administrative support

  4         order procedures and administrative proceedings

  5         under s. 409.2560, F.S.; requiring a report;

  6         amending s. 742.10, F.S.; providing for

  7         establishment of paternity pursuant to s.

  8         409.2560, F.S., for children born out of

  9         wedlock; amending s. 760.40, F.S.; providing an

10         exception from informed consent and

11         confidentiality requirements for genetic

12         testing pursuant to an administrative

13         proceeding to establish paternity; providing an

14         effective date.

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Subsection (4) is added to section

19  61.13016, Florida Statutes, to read:

20         61.13016  Suspension of driver's licenses and motor

21  vehicle registrations.--

22         (4)  The procedures in this section may be used to

23  enforce compliance with an order to appear for genetic testing

24  to establish paternity or paternity and child support.

25         Section 2.  Section 61.1814, Florida Statutes, is

26  amended to read:

27         61.1814  Child Support Enforcement Application and

28  Program Revenue Trust Fund.--The Child Support Enforcement

29  Application and Program Revenue Trust Fund is hereby created,

30  to be administered by the Department of Revenue. The fund

31  shall be used for the deposit of application fees of nonpublic

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  1  assistance applicants for child support enforcement services

  2  and fines imposed under ss. 409.2560(7)(b), 409.2564(8), and

  3  409.2578.  Moneys deposited from fines imposed under ss.

  4  409.2560(7)(b), 409.2564(8), and 409.2578 shall be maintained

  5  separately from moneys deposited from application fees.

  6         Section 3.  Paragraph (c) of subsection (14) of section

  7  120.80, Florida Statutes, is amended to read:

  8         120.80  Exceptions and special requirements;

  9  agencies.--

10         (14)  DEPARTMENT OF REVENUE.--

11         (c)  Proceedings to establish paternity or paternity

12  and child support; orders to appear for genetic testing;

13  proceedings for administrative child support

14  orders.--Notwithstanding the provisions of s. 120.569 or s.

15  120.57 to the contrary, in proceedings to establish paternity

16  or paternity and child support pursuant to s. 409.2560 and

17  proceedings for the establishment of administrative support

18  orders pursuant to s. 409.2563, final orders in cases referred

19  by the Department of Revenue to the Division of Administrative

20  Hearings shall be entered by the division's administrative law

21  judge and transmitted to the Department of Revenue for filing

22  and rendering indexing. The Department of Revenue has the

23  right to seek judicial review of a final order entered by an

24  administrative law judge under s. 120.68. The Department of

25  Revenue and the person ordered to appear for genetic testing

26  may seek immediate judicial review under s. 120.68 of an order

27  issued by an administrative law judge pursuant to s.

28  409.2560(5)(b).  Final orders that adjudicate paternity or

29  paternity and child support pursuant to s. 409.2560 and

30  administrative support orders rendered pursuant to s. 409.2563

31  may be enforced pursuant to s. 120.69 or, alternatively, by

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  1  any method prescribed by law for the enforcement of judicial

  2  support orders, except contempt.

  3         Section 4.  Paragraph (e) of subsection (2) of section

  4  382.013, Florida Statutes, is redesignated as paragraph (f),

  5  and a new paragraph (e) is added to said subsection to read:

  6         382.013  Birth registration.--A certificate for each

  7  live birth that occurs in this state shall be filed within 5

  8  days after such birth with the local registrar of the district

  9  in which the birth occurred and shall be registered by the

10  local registrar if the certificate has been completed and

11  filed in accordance with this chapter and adopted rules. The

12  information regarding registered births shall be used for

13  comparison with information in the state case registry, as

14  defined in chapter 61.

15         (2)  PATERNITY.--

16         (e)  If the paternity of the child is determined

17  pursuant to s. 409.2560, the name of the father and the

18  surname of the child shall be entered on the certificate in

19  accordance with the finding and order of the Department of

20  Revenue.

21         Section 5.  Paragraph (o) of subsection (3) of section

22  409.2557, Florida Statutes, is amended, paragraph (p) is

23  redesignated as paragraph (q), and a new paragraph (p) is

24  added to said subsection, to read:

25         409.2557  State agency for administering child support

26  enforcement program.--

27         (3)  SPECIFIC RULEMAKING AUTHORITY.--The department has

28  the authority to adopt rules pursuant to ss. 120.536(1) and

29  120.54 to implement all laws administered by the department in

30  its capacity as the Title IV-D agency for this state

31  including, but not limited to, the following:

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  1         (o)  State disbursement unit; and

  2         (p)  Administrative proceedings to establish paternity

  3  or paternity and child support, orders to appear for genetic

  4  testing, and administrative establishment of child support

  5  obligations; and

  6         Section 6.  Section 409.2560, Florida Statutes, is

  7  created to read:

  8         409.2560  Administrative proceeding to establish

  9  paternity or paternity and child support; order to appear for

10  genetic testing.--

11         (1)  DEFINITIONS.--Unless the context indicates

12  otherwise, as used in this section, the term:

13         (a)  "Custodian" means a person, other than the mother

14  or a putative father, who has physical custody of a child or

15  with whom the child primarily resides. References in this

16  section to the obligation of a custodian to submit to genetic

17  testing shall be construed to mean that the custodian is

18  obligated to submit the child for genetic testing, not that

19  the custodian must submit to genetic testing.

20         (b)  "Filed" means a document has been received and

21  accepted for filing at the offices of the department by the

22  clerk or an authorized deputy clerk as designated by the

23  department.

24         (c)  "Genetic testing" means a scientific analysis of

25  genetic markers that is performed by a qualified technical

26  laboratory only to exclude an individual as the parent of a

27  child or to show a probability of paternity.

28         (d)  "Paternity and child support proceeding" means an

29  administrative action commenced by the department to order

30  genetic testing, to establish paternity, and to establish an

31  administrative support order pursuant to this section.

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  1         (e)  "Paternity proceeding" means an administrative

  2  action commenced by the department to order genetic testing

  3  and establish paternity pursuant to this section.

  4         (f)  "Putative father" means an individual who is or

  5  may be the biological father of a child whose paternity has

  6  not been established and whose mother was unmarried when the

  7  child was conceived and born.

  8         (g)  "Qualified technical laboratory" means a genetic

  9  testing laboratory which may be under contract with the

10  department, which uses tests and methods of a type generally

11  acknowledged as reliable by accreditation bodies designated by

12  the United States Department of Health and Human Services,

13  which laboratory is approved by such an accreditation body.

14  The term also includes a genetic testing laboratory used by

15  another state, if the laboratory has comparable

16  qualifications.

17         (h)  "Rendered" means that a signed written order is

18  filed with the clerk or a deputy clerk of the department and

19  served on the respondent. The date of filing must be indicated

20  on the face of the order at the time of rendition.

21         (i)  "Respondent" means the person or persons served by

22  the department with a notice of proceeding pursuant to

23  subsection (4), which includes the putative father and which

24  may include the mother or the custodian of the child.

25         (j)  "State" or "other state" has the meaning

26  prescribed in s. 88.1011(19).

27         (2)  JURISDICTION; LOCATION OF HEARINGS; RIGHT OF

28  ACCESS TO THE COURTS.--

29         (a)  The department may commence a paternity proceeding

30  or a paternity and child support proceeding as provided by

31  subsection (4) if:

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  1         1.  The child's paternity has not been established;

  2         2.  The child's mother was unmarried when the child was

  3  conceived and born;

  4         3.  The department is providing Title IV-D services;

  5  and

  6         4.  The child's mother or a putative father has stated

  7  in an affidavit or written declaration as provided by s.

  8  92.525(2) that the putative father is or may be the child's

  9  biological father. The affidavit or written declaration must

10  set forth the factual basis for the allegation of paternity as

11  provided by s. 742.12(2).

12         (b)  If the department receives a request from another

13  state to assist in the establishment of paternity, the

14  department may serve an order to appear for genetic testing on

15  a person who resides in Florida and transmit the test results

16  to the other state without commencing a paternity proceeding

17  in this state.

18         (c)  The department may use the procedures authorized

19  by this section against a nonresident over whom this state may

20  assert personal jurisdiction under chapter 48 or chapter 88.

21         (d)  If a putative father, mother, or custodian in a

22  Title IV-D case voluntarily submits, the department may

23  schedule that individual or the child for genetic testing

24  without serving that individual with an order to appear for

25  genetic testing. A respondent or other person who is subject

26  to an order to appear for genetic testing may, in writing or

27  on the record at an administrative hearing, waive formal

28  service of notices or orders or waive any other rights or time

29  periods prescribed by this section.

30         (e)  Whenever practicable, hearings held by the

31  Division of Administrative Hearings pursuant to this section

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  1  shall be held in the judicial circuit where the person

  2  receiving Title IV-D services resides or, if the person

  3  receiving Title IV-D services does not reside in the state, in

  4  the judicial circuit where the respondent resides. If the

  5  department and the respondent agree, the hearing may be held

  6  in another location.

  7         (f)  The Legislature does not intend to limit the

  8  jurisdiction of the circuit courts to hear and determine

  9  issues regarding establishment of paternity. This section is

10  intended to provide the department with an alternative

11  procedure for establishing paternity and child support

12  obligations in Title IV-D cases. Nothing in this section shall

13  be construed to prohibit a person who has standing from filing

14  a civil action in circuit court for a determination of

15  paternity or of child support obligations.

16         (3)  MULTIPLE PUTATIVE FATHERS; MULTIPLE CHILDREN.--If

17  more than one putative father has been named, the department

18  may proceed under this section against a single putative

19  father or may proceed simultaneously against more than one

20  putative father. If a putative father has been named as a

21  possible father of more than one child born to the same

22  mother, the department may proceed to establish the paternity

23  of each child in the same proceeding.

24         (4)  NOTICE OF PROCEEDING TO ESTABLISH PATERNITY OR

25  PATERNITY AND CHILD SUPPORT; ORDER TO APPEAR FOR GENETIC

26  TESTING; MANNER OF SERVICE; CONTENTS.--The department shall

27  commence a paternity or paternity and child support proceeding

28  by serving the respondent with a notice as provided by this

29  section. An order to appear for genetic testing may be served

30  at the same time as a notice of proceeding or may be served

31  separately.  A copy of the affidavit or written declaration

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  1  upon which the proceeding is based shall be provided to the

  2  respondent when notice is served. A notice or order to appear

  3  for genetic testing shall be served by certified mail,

  4  restricted delivery, return receipt requested, or in

  5  accordance with the requirements for service of process in a

  6  civil action. Service by certified mail is completed when the

  7  certified mail is received or refused. For purposes of this

  8  section, an employee or an authorized agent of the department

  9  may serve the notice or order to appear for genetic testing

10  and execute an affidavit of service. The department may serve

11  an order to appear for genetic testing on a custodian. The

12  department shall provide a copy of the notice or order to

13  appear by regular mail to the mother and custodian, if they

14  are not respondents.

15         (a)  A notice of proceeding to establish paternity must

16  state:

17         1.  That the department has commenced an administrative

18  proceeding to establish whether the putative father is the

19  biological father of the child named in the notice.

20         2.  The name and date of birth of the child and the

21  name of the child's mother.

22         3.  That the putative father has been named in an

23  affidavit or written declaration which states the putative

24  father is or may be the child's biological father.

25         4.  That the respondent is required to submit to

26  genetic testing.

27         5.  That genetic testing will establish either a high

28  degree of probability that the putative father is the

29  biological father of the child or that the putative father

30  cannot be the biological father of the child.

31

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  1         6.  That if the genetic test results do not indicate a

  2  statistical probability of paternity that equals or exceeds 99

  3  percent, the paternity proceeding ends as to that child unless

  4  a second or subsequent test is required.

  5         7.  That if the genetic test results indicate a

  6  statistical probability of paternity that equals or exceeds 99

  7  percent, the department may:

  8         a.  Issue a proposed order of paternity that the

  9  respondent may consent to or contest at an administrative

10  hearing; or

11         b.  Commence a proceeding, as provided by s. 409.2563,

12  to establish an administrative support order for the child,

13  and that notice of that proceeding will be provided to the

14  respondent by regular mail.

15         8.  That if the genetic test results indicate a

16  statistical probability of paternity that equals or exceeds 99

17  percent and a proceeding to establish an administrative

18  support order is commenced, the department will issue a

19  proposed order that addresses paternity and child support that

20  the respondent may consent to or contest at an administrative

21  hearing.

22         9.  That if a proposed order of paternity or paternity

23  and child support is not contested, the department will adopt

24  the proposed order and render a final order that establishes

25  paternity and, if appropriate, an administrative support order

26  for the child.

27         10.  That until the paternity or paternity and child

28  support proceeding is ended, the respondent shall notify the

29  department in writing of any change in the respondent's

30  mailing address; that the respondent shall be deemed to have

31  received any subsequent order, notice, or other paper mailed

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  1  to the most recent address provided or, if a more recent

  2  address is not provided, to the address at which the

  3  respondent was served; and that this requirement continues if

  4  the department renders a final order that establishes

  5  paternity and a support order for the child.

  6         11.  That the respondent may file an action in circuit

  7  court for a determination of paternity or child support

  8  obligations, or both.

  9         12.  That if the respondent files an action in circuit

10  court and serves the department with a copy of the petition or

11  complaint within 20 days after being served notice under this

12  subsection, the administrative process ends without prejudice

13  and the action must proceed in circuit court.

14         (b)  A notice of proceeding to establish paternity and

15  child support must state the matters required by paragraph

16  (a), except for subparagraph (a)7., and must state the matters

17  required by s. 409.2563(4) to the extent that the matters

18  required by s. 409.2563(4) are not already required by and do

19  not conflict with this subsection. This section and s.

20  409.2563 apply to a proceeding commenced under this paragraph.

21         (c)  The order to appear for genetic testing must

22  inform the person ordered to appear:

23         1.  That the department has commenced an administrative

24  proceeding to establish whether the putative father is the

25  biological father of the child.

26         2.  Of the name and date of birth of the child and the

27  name of the child's mother.

28         3.  That the putative father has been named in an

29  affidavit or written declaration which states the putative

30  father is or may be the child's biological father.

31

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  1         4.  Of the date, time, and place at which the person

  2  ordered to appear must appear to provide a sample for genetic

  3  testing.

  4         5.  That if the person has custody of the child whose

  5  paternity is the subject of the proceeding, the person must

  6  submit the child to genetic testing.

  7         6.  That when the samples are provided, the person

  8  ordered to appear must verify his or her identity, and the

  9  identity of the child, if applicable, by presenting a form of

10  identification as prescribed by s. 117.05(5)(b)2. which bears

11  the photograph of the person who is providing the sample, or

12  other form of verification approved by the department.

13         7.  That if the person ordered to appear submits to

14  genetic testing, the department will pay the cost of the

15  genetic testing and will provide the person with a copy of any

16  test results obtained.

17         8.  That if the person ordered to appear does not

18  appear as ordered or refuses to submit to genetic testing

19  without good cause, the department may take one or more of the

20  following actions:

21         a.  Commence proceedings to suspend the driver's

22  license and motor vehicle registration of the person ordered

23  to appear, as provided by s. 61.13016.

24         b.  Impose an administrative fine against the person

25  ordered to appear in the amount of $500.

26         c.  File a petition in circuit court to establish

27  paternity and obtain a support order for the child and an

28  order for costs against the person ordered to appear,

29  including costs for genetic testing.

30         9.  That the person ordered to appear may contest the

31  order by filing a written request for informal review within

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  1  15 days after the date of service of the order, with further

  2  rights to an administrative hearing following the informal

  3  review.

  4         (5)  RIGHT TO CONTEST ORDER TO APPEAR FOR GENETIC

  5  TESTING.--

  6         (a)  The person ordered to appear for genetic testing

  7  may contest an order to appear by filing a written request for

  8  informal review with the department within 15 days after the

  9  date of service of the order. The purpose of the informal

10  review is to provide the person ordered to appear with an

11  opportunity to discuss the proceedings and the basis of the

12  order. At the conclusion of the informal review, the

13  department shall notify the person, in writing, as to whether

14  it will proceed with the order to appear. If the department

15  notifies the person ordered to appear of its intent to

16  proceed, the notice must inform the person of the right to

17  contest the order at an administrative hearing.

18         (b)  Within 15 days after the mailing date of the

19  department's notification, following an informal review, that

20  the department will proceed with an order to appear for

21  genetic testing, the person ordered to appear may file a

22  request for an administrative hearing to contest whether the

23  person should be required to submit to genetic testing. A

24  request for an administrative hearing must state the specific

25  reasons the person ordered to appear believes he or she should

26  not be required to submit to genetic testing as ordered. If

27  the person ordered to appear files a timely request for a

28  hearing, the department shall refer the hearing request to the

29  Division of Administrative Hearings. Unless otherwise provided

30  by this section, administrative hearings are governed by

31  chapter 120 and the uniform rules of procedure. The

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  1  administrative law judge assigned to the case shall issue an

  2  order as to whether the person must submit to genetic testing

  3  in accordance with the order to appear. The department and the

  4  person ordered to appear may seek immediate judicial review

  5  under s. 120.68 of an order issued by an administrative law

  6  judge pursuant to this paragraph.

  7         (c)  If a timely request for an informal review or an

  8  administrative hearing is filed, the department may not

  9  proceed under the order to appear for genetic testing and may

10  not impose sanctions for failure or refusal to submit to

11  genetic testing until:

12         1.  The department has notified the person of its

13  intent to proceed after informal review and a timely request

14  for hearing is not filed;

15         2.  The person ordered to appear withdraws the request

16  for hearing or informal review; or

17         3.  The Division of Administrative Hearings issues an

18  order that the person must submit to genetic testing, or an

19  order closing the division's file, and that order has become

20  final.

21         (d)  If a request for an informal review or

22  administrative hearing is not timely filed, the person ordered

23  to appear is deemed to have waived the right to a hearing, and

24  the department may proceed under the order to appear for

25  genetic testing.

26         (6)  SCHEDULING OF GENETIC TESTING.--

27         (a)  The department shall notify the person ordered to

28  appear, in writing, of the date, time, and place at which the

29  person is required to appear for genetic testing and of the

30  requirement to verify his or her identity, and the identity of

31  the child, if applicable, when the samples are provided, by

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  1  presenting a form of identification as prescribed by s.

  2  117.05(5)(b)2. which bears the photograph of the person who is

  3  providing the sample, or other form of verification approved

  4  by the department. If the person ordered to appear is the

  5  putative father or the mother, that person shall appear and

  6  submit to genetic testing. If the person ordered to appear is

  7  a custodian, or if the putative father or the mother has

  8  custody of the child, then that person must submit the child

  9  to genetic testing.

10         (b)  The department shall reschedule a genetic test:

11         1.  One time without cause if, in advance of the

12  initial test date, the person ordered to appear requests the

13  department to reschedule the test.

14         2.  One time if the person ordered to appear shows good

15  cause for failure to appear for a scheduled test.

16         3.  One time upon request of a person ordered to appear

17  against whom sanctions have been imposed as provided by

18  subsection (7).

19

20  A claim of good cause for failure to appear must be filed with

21  the department within 10 days after the scheduled test date

22  and must state the facts and circumstances supporting the

23  claim. The department shall notify the person ordered to

24  appear, in writing, as to whether it accepts or rejects the

25  person's claim of good cause. There is no separate right to a

26  hearing on the department's decision to accept or reject the

27  claim of good cause because the person ordered to appear may

28  raise good cause as a defense to any proceeding initiated by

29  the department under subsection (7).

30         (c)  A person ordered to appear may obtain a second

31  genetic test by filing a written request for a second test

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  1  with the department within 15 days after the date of mailing

  2  of the initial genetic testing results and by paying the

  3  department in advance for the full cost of the second test.

  4         (d)  The department may schedule and require a

  5  subsequent genetic test if it has reason to believe the

  6  results of the preceding genetic test may not be reliable.

  7         (e)  Except as provided by paragraph (c) and subsection

  8  (7), the department shall pay for the cost of genetic testing

  9  ordered under this section.

10         (7)  FAILURE OR REFUSAL TO SUBMIT TO GENETIC

11  TESTING.--If a person who is served with an order to appear

12  for genetic testing fails to appear without good cause, or

13  refuses to submit to testing without good cause, the

14  department may take one or more of the following actions:

15         (a)  Commence proceedings to suspend the driver's

16  license and motor vehicle registration of the person ordered

17  to appear, as provided by s. 61.13016.

18         (b)  Impose an administrative fine against the person

19  ordered to appear in the amount of $500.

20         (c)  File a petition in circuit court to establish

21  paternity, obtain a support order for the child, and seek

22  reimbursement from the person ordered to appear for the full

23  cost of genetic testing incurred by the department.

24

25  As provided by s. 322.058(2), a suspended driver's license and

26  motor vehicle registration may be reinstated when the person

27  ordered to appear complies with the order to appear for

28  genetic testing. The department may collect an administrative

29  fine imposed under this subsection by using civil remedies or

30  other statutory means available to the department for

31  collection of support.

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  1         (8)  GENETIC TESTING RESULTS.--The department shall

  2  send a copy of the genetic testing results to the putative

  3  father, and to the mother, to the custodian, and to the other

  4  state, if applicable. If the genetic testing results,

  5  including second or subsequent genetic testing results, do not

  6  indicate a statistical probability of paternity that equals or

  7  exceeds 99 percent, the paternity proceeding ends as to that

  8  child.

  9         (9)  PROPOSED ORDER OF PATERNITY; COMMENCEMENT OF

10  PROCEEDING TO ESTABLISH ADMINISTRATIVE SUPPORT ORDER; PROPOSED

11  ORDER OF PATERNITY AND CHILD SUPPORT.--

12         (a)  If a paternity proceeding has been commenced under

13  this section and the results of genetic testing indicate a

14  statistical probability of paternity that equals or exceeds 99

15  percent, the department may:

16         1.  Issue a proposed order of paternity as provided by

17  paragraph (b); or

18         2.  If appropriate, delay issuing a proposed order of

19  paternity, commence, by regular mail, an administrative

20  proceeding to establish a support order for the child pursuant

21  to s. 409.2563, and issue a single proposed order that

22  addresses paternity and child support.

23         (b)  A proposed order of paternity shall:

24         1.  State proposed findings of fact and conclusions of

25  law.

26         2.  Include a copy of the results of genetic testing.

27         3.  Include notice of the respondent's right to

28  informal review and to contest the proposed order of paternity

29  at an administrative hearing.

30         (c)  If a paternity and child support proceeding has

31  been commenced under this section and the results of genetic

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  1  testing indicate a statistical probability of paternity that

  2  equals or exceeds 99 percent, the department may issue a

  3  single proposed order that addresses paternity and child

  4  support.

  5         (d)  The department shall serve a proposed order issued

  6  under this section on the respondent by regular mail and shall

  7  provide a copy by regular mail to the mother or custodian if

  8  the mother or custodian is not a respondent.

  9         (10)  INFORMAL REVIEW; ADMINISTRATIVE HEARING;

10  PRESUMPTION OF PATERNITY.--

11         (a)  Within 10 days after the date of mailing or other

12  service of a proposed order, the respondent may contact a

13  department representative at the address or telephone number

14  provided to request an informal review of the proposed order.

15  If an informal review is timely requested, the time for

16  requesting a hearing shall be extended until 10 days after the

17  department mails notice to the respondent that the informal

18  review has been concluded.

19         (b)  Within 20 days after the mailing date of the

20  proposed order, or within 10 days after the mailing date of

21  notice that an informal review has been concluded, whichever

22  is later, the respondent may request an administrative hearing

23  by filing a written request for a hearing with the department.

24  A request for a hearing must state the specific objections to

25  the proposed order, the specific objections to the genetic

26  testing results, or both. A respondent who fails to file a

27  timely request for a hearing is deemed to have waived the

28  right to a hearing.

29         (c)  If the respondent files a timely request for a

30  hearing, the department shall refer the request to the

31  Division of Administrative Hearings. Unless otherwise provided

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  1  by this section or by s. 409.2563, chapter 120 and the uniform

  2  rules of procedure govern the conduct of the proceedings. A

  3  designated employee or other representative of the department,

  4  who need not be an attorney, may represent the department as a

  5  qualified representative at the hearing.

  6         (d)  The genetic testing results shall be admitted into

  7  evidence and made a part of the hearing record. For purposes

  8  of this section, a statistical probability of paternity that

  9  equals or exceeds 99 percent creates a presumption, as defined

10  by s. 90.304, that the putative father is the biological

11  father of the child. The presumption may be overcome only by

12  clear and convincing evidence. The respondent or the

13  department may call an expert witness to refute or support the

14  testing procedure or results or the mathematical theory on

15  which the results are based. Verified documentation of the

16  chain of custody of the samples tested is competent evidence

17  to establish the chain of custody.

18         (11)  FINAL ORDER ESTABLISHING PATERNITY OR PATERNITY

19  AND CHILD SUPPORT; CONSENT ORDER; NOTICE TO OFFICE OF VITAL

20  STATISTICS.--

21         (a)  If a hearing is held, notwithstanding ss. 120.569

22  and 120.57, the administrative law judge of the Division of

23  Administrative Hearings shall issue a final order that

24  adjudicates paternity or, if appropriate, paternity and child

25  support. A final order of the administrative law judge

26  constitutes final agency action by the department. The

27  Division of Administrative Hearings shall transmit any such

28  order to the department for filing and rendering.

29         (b)  If the respondent does not file a timely request

30  for a hearing or consents in writing to entry of a final order

31  without a hearing, the department may render a final order of

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  1  paternity or a final order of paternity and child support, as

  2  appropriate.

  3         (c)  The department shall mail a copy of the final

  4  order to the putative father, the mother, and the custodian,

  5  if any. The department shall notify the respondent of the

  6  right to seek judicial review of a final order in accordance

  7  with s. 120.68.

  8         (d)  Upon rendering a final order of paternity or a

  9  final order of paternity and child support, the department

10  shall notify the Office of Vital Statistics that the paternity

11  of the child has been established.

12         (e)  A final order rendered pursuant to this section

13  has the same binding effect as a judgment entered by the court

14  pursuant to chapter 742.

15         (f)  The provisions of s. 409.2563 that apply to a

16  final administrative support order rendered under that section

17  apply to a final order rendered under this section when a

18  child support obligation is established.

19         (g)  The department, or the administrative law judge if

20  appropriate, may issue a corrected final order to correct

21  typographical or clerical errors contained in the original

22  final order.

23         (12)  RIGHT TO JUDICIAL REVIEW.--A respondent has the

24  right to seek judicial review, in accordance with s. 120.68,

25  of a final order rendered under subsection (11) and an order

26  issued under paragraph (5)(b). The department has the right to

27  seek judicial review, in accordance with s. 120.68, of a final

28  order issued by an administrative law judge under subsection

29  (11) and an order issued by an administrative law judge under

30  paragraph (5)(b).

31

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  1         (13)  DUTY TO PROVIDE AND MAINTAIN CURRENT MAILING

  2  ADDRESS.--Until a proceeding that has been commenced under

  3  this section has ended, a respondent who is served with a

  4  notice of proceeding shall inform the department in writing of

  5  any change in the respondent's mailing address and shall be

  6  deemed to have received any subsequent order, notice, or other

  7  paper mailed to that address or the address at which the

  8  respondent was served if the respondent has not provided a

  9  more recent address.

10         (14)  PROCEEDINGS IN CIRCUIT COURT.--The results of

11  genetic testing performed pursuant to this section are

12  admissible as evidence to the same extent as scientific

13  testing ordered by the court pursuant to chapter 742.

14         (15)  GENDER NEUTRAL.--This section shall be construed

15  in a way that is gender neutral and applies with equal force

16  to the mother of a child whose paternity has not been

17  established and is not presumed by law.

18         (16)  REMEDIES SUPPLEMENTAL.--The remedies provided by

19  this section are supplemental and in addition to other

20  remedies available to the department for the establishment of

21  paternity and child support obligations.

22         (17)  RULEMAKING AUTHORITY.--The department may adopt

23  rules to implement, interpret, and enforce the provisions of

24  this section.

25         Section 7.  Paragraph (c) of subsection (1) of section

26  409.2563, Florida Statutes, is amended, paragraphs (d), (e),

27  and (f) of subsection (1) are redesignated as paragraphs (e),

28  (f), and (g), a new paragraph (d) is added to said subsection,

29  and paragraphs (b) and (c) of subsection (2), subsection (4),

30  paragraph (c) of subsection (5), subsection (6), paragraphs

31  (a) and (e) of subsection (7), paragraph (d) of subsection

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  1  (8), subsection (12), paragraph (a) of subsection (13), and

  2  subsection (17) of said section are amended, to read:

  3         409.2563  Pilot program for Administrative

  4  establishment of child support obligations.--

  5         (1)  DEFINITIONS.--As used in this section, the term:

  6         (c)  "Filed" means a document has been received and

  7  accepted for filing at the offices of the department by the

  8  clerk or any authorized deputy clerk of the department, as

  9  designated by the department. The date of filing must be

10  indicated on the face of the document by the clerk or deputy

11  clerk.

12         (d)  "Financial affidavit" means an affidavit or

13  written declaration as provided by s. 92.525(2) which shows an

14  individual's income, allowable deductions, net income, and

15  other information needed to calculate the child support

16  guideline amount under s. 61.30.

17

18  Other terms used in this section have the meanings ascribed in

19  ss. 61.046 and 409.2554.

20         (2)  PURPOSE AND SCOPE.--

21         (b)  The administrative procedure set forth in this

22  section concerns only the establishment of child support

23  obligations. This section does not grant jurisdiction to the

24  department or the Division of Administrative Hearings to hear

25  or determine issues of dissolution of marriage, separation,

26  alimony or spousal support, termination of parental rights,

27  dependency, disputed paternity except for a determination of

28  paternity as provided by s. 409.2560, award of or change of

29  custody, or visitation. This paragraph notwithstanding, the

30  department and the Division of Administrative Hearings may

31  make findings of fact which are necessary for a proper

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  1  determination of a noncustodial parent's support obligation as

  2  authorized by this section.

  3         (c)  If there is no support order for a child in a

  4  Title IV-D case whose paternity has been established or is

  5  presumed by law or whose paternity is the subject of a

  6  proceeding under s. 409.2560, the department may establish the

  7  a noncustodial parent's child support obligation pursuant to

  8  this section, s. 61.30, and other relevant provisions of state

  9  law. The noncustodial parent's obligation determined by the

10  department may include any obligation to pay retroactive

11  support and any obligation to provide for health care for a

12  child, whether through insurance coverage, reimbursement of

13  expenses, or both. The department may proceed on behalf of:

14         1.  An applicant or recipient of public assistance, as

15  provided by ss. 409.2561 and 409.2567;

16         2.  A former recipient of public assistance, as

17  provided by s. 409.2569;

18         3.  An individual who has applied for services as

19  provided by s. 409.2567;

20         4.  Itself or the child, as provided by s. 409.2561; or

21         5.  A state or local government of another state, as

22  provided by chapter 88.

23         (4)  NOTICE OF PROCEEDING TO ESTABLISH ADMINISTRATIVE

24  SUPPORT ORDER.--To commence a proceeding under this section,

25  the department shall provide to the custodial parent and serve

26  the noncustodial parent with a notice of proceeding to

27  establish administrative support order and a blank financial

28  affidavit form. The notice must state:

29         (a)  The names of both parents, the name of the

30  caretaker relative, if any, and the name and date of birth of

31  the child or children;

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  1         (b)  That the department intends to establish an

  2  administrative support order as defined in this section;

  3         (c)  That both parents must submit a completed

  4  financial affidavit to the department within 20 days after

  5  receiving the notice, as provided by paragraph (13)(a);

  6         (d)  That both parents, or parent and caretaker

  7  relative if applicable, are required to furnish to the

  8  department information regarding their identities and

  9  locations, as provided by paragraph (13)(b);

10         (e)  That both parents, or parent and caretaker

11  relative if applicable, are required to promptly notify the

12  department of any change in their mailing addresses to ensure

13  receipt of all subsequent pleadings, notices, and orders, as

14  provided by paragraph (13)(c);

15         (f)  That the department will calculate support

16  obligations based on the child support guidelines in s. 61.30

17  and using all available information, as provided by paragraph

18  (5)(a), and will incorporate such obligations into a proposed

19  administrative support order;

20         (g)  That the department will send by regular mail to

21  both parents, or parent and caretaker relative if applicable,

22  a copy of the proposed administrative support order, the

23  department's child support worksheet, and any financial

24  affidavits submitted by a parent or prepared by the

25  department;

26         (h)  That the noncustodial parent may file a request

27  for a hearing in writing within 20 days after the date of

28  mailing or other service of the proposed administrative

29  support order or will be deemed to have waived the right to

30  request a hearing;

31

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  1         (i)  That if the noncustodial parent does not file a

  2  timely request for hearing after service of the proposed

  3  administrative support order, the department will issue an

  4  administrative support order that incorporates the findings of

  5  the proposed administrative support order, and will send by

  6  regular mail a copy of the administrative support order to

  7  both parents, or parent and caretaker relative if applicable;

  8         (j)  That after an administrative support order is

  9  rendered, the department will file a copy of the order with

10  the clerk of the circuit court;

11         (k)  That after an administrative support order is

12  rendered, the department may enforce the administrative

13  support order by any lawful means; and

14         (l)  That either parent, or caretaker relative if

15  applicable, may file at any time a civil action in a circuit

16  court having jurisdiction and proper venue to determine the

17  noncustodial parent's child support obligations, if any, and

18  that a support order issued by a circuit court supersedes an

19  administrative support order rendered by the department;

20         (m)  That the respondent may file an action in circuit

21  court for a determination of paternity or child support

22  obligations, or both; and

23         (n)  That if the respondent files an action in circuit

24  court and serves the department with a copy of the petition or

25  complaint within 20 days after being served notice under this

26  subsection, the administrative process ends without prejudice

27  and the action must proceed in circuit court.

28

29  The department may serve the notice of proceeding to establish

30  administrative support order by certified mail, restricted

31  delivery, return receipt requested. Alternatively, the

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  1  department may serve the notice by any means permitted for

  2  service of process in a civil action. For purposes of this

  3  section, an authorized employee of the department may serve

  4  the notice and execute an affidavit of service. Service by

  5  certified mail is completed when the certified mail is

  6  received or refused. The department shall provide the

  7  custodial parent or caretaker relative with a copy of the

  8  notice by regular mail to the last known address of the

  9  custodial parent or caretaker.

10         (5)  PROPOSED ADMINISTRATIVE SUPPORT ORDER.--

11         (c)  The department shall provide a notice of rights

12  with the proposed administrative support order, which notice

13  must inform the noncustodial parent that:

14         1.  The noncustodial parent may, within 20 days after

15  the date of mailing or other service of the proposed

16  administrative support order, request a hearing by filing a

17  written request for hearing in a form and manner specified by

18  the department;

19         2.  If the noncustodial parent files a timely request

20  for a hearing, the case shall be transferred to the Division

21  of Administrative Hearings, which shall conduct further

22  proceedings and may enter an administrative support order;

23         3.  A noncustodial parent who fails to file a timely

24  request for a hearing shall be deemed to have waived the right

25  to a hearing, and the department may render an administrative

26  support order pursuant to paragraph (7)(b);

27         4.  The noncustodial parent may consent in writing to

28  entry of an administrative support order without a hearing;

29         5.  The noncustodial parent may, within 10 days after

30  the date of mailing or other service of the proposed

31  administrative support order, contact a department

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  1  representative, at the address or telephone number specified

  2  in the notice, to informally discuss the proposed

  3  administrative support order and, if informal discussions are

  4  timely requested and held within a reasonable time, the time

  5  for requesting a hearing will be extended until 10 days after

  6  the department notifies the noncustodial parent that the

  7  informal discussions have been concluded; and

  8         6.  If an administrative support order that establishes

  9  a noncustodial parent's support obligation is rendered,

10  whether after a hearing or without a hearing, the department

11  may enforce the administrative support order by any lawful

12  means.

13         (6)  HEARING.--If the noncustodial parent files a

14  timely request for hearing, the department shall refer the

15  hearing request to the Division of Administrative Hearings.

16  Unless otherwise provided by this section, chapter 120 and the

17  division's uniform rules of procedure shall govern the conduct

18  of the proceedings. The administrative law judge shall

19  consider all available and admissible information and any

20  presumptions that apply as provided by paragraph (5)(a). A

21  designated employee or other representative of the department,

22  who need not be an attorney, may represent the department as a

23  qualified representative at the hearing.

24         (7)  ADMINISTRATIVE SUPPORT ORDER.--

25         (a)  If a hearing is held, notwithstanding ss. 120.569

26  and 120.57, the administrative law judge of the Division of

27  Administrative Hearings shall issue an administrative support

28  order, or a final order denying an administrative support

29  order, which constitutes final agency action by the

30  department. The Division of Administrative Hearings shall

31

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  1  transmit any such order to the department for filing and

  2  rendering indexing.

  3         (e)  An administrative support order must comply with

  4  s. 61.30. The department, after consultation with the Division

  5  of Administrative Hearings and the chief judge of the circuit

  6  in which the pilot program is located, shall develop a

  7  standard form or forms for administrative support orders. An

  8  administrative support order must provide and state findings,

  9  if applicable, concerning:

10         1.  The full name and date of birth of the child or

11  children;

12         2.  The name of the noncustodial parent and the

13  custodial parent or caretaker relative;

14         3.  The noncustodial parent's duty and ability to

15  provide support;

16         4.  The amount of the noncustodial parent's monthly

17  support obligation for each child;

18         5.  Any obligation to pay retroactive support;

19         6.  The noncustodial parent's obligation to provide for

20  the health care needs of each child, whether through insurance

21  coverage, contribution towards the cost of insurance coverage,

22  payment or reimbursement of health care expenses for the

23  child, or any combination thereof;

24         7.  The beginning date of any required monthly payments

25  and health care coverage;

26         8.  That all support payments ordered must be paid to

27  the Florida State Disbursement Unit as provided by s. 61.1824;

28         9.  That the parents, or caretaker relative if

29  applicable, must file with the department when the

30  administrative support order is rendered, if they have not

31

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  1  already done so, and update as appropriate the information

  2  required pursuant to paragraph (13)(b); and

  3         10.  That both parents, or parent and caretaker

  4  relative if applicable, are required to promptly notify the

  5  department of any change in their mailing addresses pursuant

  6  to paragraph (13)(c); and

  7         11.  That if the noncustodial parent receives

  8  unemployment compensation benefits, the payor shall withhold

  9  and transmit to the department 40 percent of the benefits for

10  payment of support, not to exceed the amount owed.

11

12  An income deduction order as provided by s. 61.1301 must be

13  incorporated into the administrative support order or, if not

14  incorporated into the administrative support order, the

15  department or the Division of Administrative Hearings shall

16  render a separate income deduction order.

17         (8)  FILING WITH THE CLERK OF THE CIRCUIT COURT;

18  OFFICIAL PAYMENT RECORD; JUDGMENT BY OPERATION OF LAW.--The

19  department shall file with the clerk of the circuit court a

20  certified copy of an administrative support order rendered

21  under this section. The depository operated pursuant to s.

22  61.181 for the county where the administrative support order

23  has been filed shall:

24         (d)  Perform all other duties required of a depository

25  with respect to a support order entered by a court of this

26  state.

27         (12)  MODIFICATION OF ADMINISTRATIVE SUPPORT ORDER.--If

28  it has not been superseded by a subsequent court order, the

29  department may modify, suspend, or terminate an administrative

30  support order in a Title IV-D case prospectively, subject to

31  the requirements for modifications of judicial support orders

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  1  established in chapters 61 and 409, by following the same

  2  procedures set forth in this section for establishing an

  3  administrative support order, as applicable.

  4         (13)  REQUIRED DISCLOSURES; PRESUMPTIONS; NOTICE SENT

  5  TO ADDRESS OF RECORD.--In all proceedings pursuant to this

  6  section:

  7         (a)  The noncustodial parent and custodial parent must

  8  execute and furnish to the department, no later than 20 days

  9  after receipt of the notice of proceeding to establish

10  administrative support order, a financial affidavit in the

11  form prescribed by the department in the Florida Family Law

12  Rules of Procedure. An updated financial affidavit must be

13  executed and furnished to the department at the inception of

14  each proceeding to modify an administrative support order.

15  Caretaker relatives are not required to furnish financial

16  affidavits.

17         (17)  STATEWIDE EFFECT; EVALUATION PILOT PROGRAM.--The

18  procedures in this section and s. 409.2560 shall be

19  implemented statewide. For the purpose of identifying

20  measurable outcomes and evaluating the administrative process

21  created by this section, a study area the pilot program shall

22  be established. The study area shall be located in a county

23  selected by the Department of Revenue having a population of

24  fewer than 500,000, in which the Title IV-D caseload did not

25  exceed 20,000 cases, and the obligation rate was approximately

26  65 percent at the end of the 1999-2000 fiscal year. The

27  Department of Revenue shall develop measurable outcomes that

28  at a minimum consist of the department's support order

29  establishment performance measures that are applicable to the

30  administrative process this pilot program, a measure of the

31  effectiveness of the administrative process pilot program in

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  1  establishing support orders as compared to the judicial

  2  process, and a measure of the cost efficiency of the

  3  administrative process pilot program as compared to the

  4  judicial process. The Department of Revenue and the Division

  5  of Administrative Hearings shall implement the pilot program

  6  established by this section on July 1, 2001, or as soon

  7  thereafter as practicable. The department shall use the

  8  procedures of this section to establish support obligations in

  9  Title IV-D cases on behalf of custodial parents or caretaker

10  relatives residing in the county selected for the study area

11  pilot program. By June 30, 2002, the Department of Revenue

12  shall submit a report on the implementation of the

13  administrative process in the study area pilot program to the

14  Governor and Cabinet, the President of the Senate, and the

15  Speaker of the House of Representatives. The Office of Program

16  Policy Analysis and Government Accountability shall conduct an

17  evaluation of the operation and impact of the administrative

18  process in the study area pilot program. In evaluating the

19  administrative process pilot program, achievement of the

20  measurable outcomes must be considered.  The Office of Program

21  Policy Analysis and Government Accountability shall submit an

22  evaluation report on the administrative process in the study

23  area pilot program by June 30, 2003, which must include the

24  findings of the evaluation, the feasibility of a statewide

25  program, and any recommendations to improve the administrative

26  process established by this section, if any, for establishing

27  a statewide program.  The pilot program expires June 30, 2004,

28  unless continued by action of the Legislature. The department

29  shall report to the Governor and Cabinet, the President of the

30  Senate, and the Speaker of the House of Representatives by

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    Florida House of Representatives - 2002                HB 1689

    687-165A-02






  1  June 30, 2004, on the implementation and results of the

  2  procedures established by this section and s. 409.2560.

  3         Section 8.  Subsection (1) of section 742.10, Florida

  4  Statutes, is amended to read:

  5         742.10  Establishment of paternity for children born

  6  out of wedlock.--

  7         (1)  This chapter provides the primary jurisdiction and

  8  procedures for the determination of paternity for children

  9  born out of wedlock. When the establishment of paternity has

10  been raised and determined within an adjudicatory hearing

11  brought under the statutes governing inheritance, or

12  dependency under workers' compensation or similar compensation

13  programs, or when an affidavit acknowledging paternity or a

14  stipulation of paternity is executed by both parties and filed

15  with the clerk of the court, or when an affidavit or notarized

16  voluntary acknowledgment of paternity as provided for in s.

17  382.013 or s. 382.016 is executed by both parties, or when

18  paternity is adjudicated by the Department of Revenue as

19  provided by s. 409.2560, it shall constitute the establishment

20  of paternity for purposes of this chapter. If no adjudicatory

21  proceeding was held, a notarized voluntary acknowledgment of

22  paternity shall create a rebuttable presumption, as defined by

23  s. 90.304, of paternity and is subject to the right of any

24  signatory to rescind the acknowledgment within 60 days of the

25  date the acknowledgment was signed or the date of an

26  administrative or judicial proceeding relating to the child,

27  including a proceeding to establish a support order, in which

28  the signatory is a party, whichever is earlier.  Both parents

29  are required to provide their social security numbers on any

30  acknowledgment of paternity, consent affidavit, or stipulation

31  of paternity. Except for affidavits under seal pursuant to ss.

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    Florida House of Representatives - 2002                HB 1689

    687-165A-02






  1  382.015 and 382.016, the Office of Vital Statistics shall

  2  provide certified copies of affidavits to the Title IV-D

  3  agency upon request.

  4         Section 9.  Paragraph (a) of subsection (2) of section

  5  760.40, Florida Statutes, is amended to read:

  6         760.40  Genetic testing; informed consent;

  7  confidentiality.--

  8         (2)(a)  Except for purposes of criminal prosecution,

  9  except for purposes of determining paternity as provided in

10  ss. 409.2560 and s. 742.12(1), and except for purposes of

11  acquiring specimens from persons convicted of certain offenses

12  or as otherwise provided in s. 943.325, DNA analysis may be

13  performed only with the informed consent of the person to be

14  tested, and the results of such DNA analysis, whether held by

15  a public or private entity, are the exclusive property of the

16  person tested, are confidential, and may not be disclosed

17  without the consent of the person tested. Such information

18  held by a public entity is exempt from the provisions of s.

19  119.07(1) and s. 24(a), Art. I of the State Constitution.

20         Section 10.  This act shall take effect upon becoming a

21  law.

22

23            *****************************************

24                          HOUSE SUMMARY

25
      Provides for administrative proceedings to establish
26    paternity, or paternity and child support, and to enforce
      compliance with orders to appear for genetic testing.
27    Revises provisions relating to administrative procedures
      to establish child support obligations and provides for
28    statewide application. See bill for details.

29

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