Senate Bill sb1456

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    Florida Senate - 2005                                  SB 1456

    By Senator Lawson





    6-964-05

  1                      A bill to be entitled

  2         An act relating to the determination of

  3         paternity; creating s. 742.109, F.S.; providing

  4         that a male who is required to pay child

  5         support as the father of a child may file a

  6         motion to set aside a determination of

  7         paternity at any time; requiring the motion to

  8         include an affidavit and the results of a

  9         genetic test; specifying the conditions that

10         the male ordered to pay child support must

11         satisfy in order to have the motion granted;

12         requiring the court to deny the motion if all

13         conditions are not satisfied; requiring that

14         the court find all conditions met if supported

15         by clear and convincing evidence; providing

16         that the duty to pay child support and other

17         legal obligations is not suspended during the

18         time the motion is pending; providing an

19         exception; authorizing the court to order that

20         the child support be paid into the registry of

21         the court until paternity is determined;

22         providing that the court may order additional

23         testing under certain circumstances; providing

24         that the person or agency requesting the

25         testing pay the fees for the tests; authorizing

26         the Department of Children and Family Services

27         to seek reimbursement of fees under certain

28         circumstances; requiring the court to assess

29         the costs of the action and attorney's fees

30         against the movant if the motion is not

31         granted; providing an effective date.

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    Florida Senate - 2005                                  SB 1456
    6-964-05




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

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 3         Section 1.  Section 742.109, Florida Statutes, is

 4  created to read:

 5         742.109  Determining paternity; motion to set aside a

 6  determination of paternity; newly discovered evidence.--

 7         (1)  In any action in which a male is required to pay

 8  child support as the father of a child, a motion to set aside

 9  a determination of paternity may be made at any time under the

10  conditions set forth in this section. The motion must be filed

11  in the circuit court that initially determined the paternity

12  of the child. The motion must include:

13         (a)  An affidavit executed by the movant that the newly

14  discovered evidence has come to movant's knowledge since the

15  entry of the initial judgment of paternity; and 

16         (b)  The results from scientifically credible

17  parentage-determination genetic testing, authorized under s.

18  742.12 and administered within 90 days before the filing of

19  the motion. The results must show that there is a 0 percent

20  probability that the male ordered to pay child support is the

21  father of the child for whom support is required.

22         (2)  The court shall grant the motion if it finds that

23  the genetic test required in paragraph (1)(b) was properly

24  conducted and that the male ordered to pay child support:

25         (a)  Has not adopted the child;

26         (b)  Was not married to the mother of the child who was

27  conceived by artificial insemination;

28         (c)  Did not act to prevent the biological father of

29  the child from asserting his paternal rights with respect to

30  the child; and

31         (d)  Has not:

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    Florida Senate - 2005                                  SB 1456
    6-964-05




 1         1.  Married the mother of the child and voluntarily

 2  assumed the parental obligation and duty to pay child support;

 3         2.  Acknowledged his paternity of the child in a sworn

 4  statement;

 5         3.  Been named as the biological father of the child on

 6  the birth certificate of the child with his consent;

 7         4.  Been required to support the child because of a

 8  written voluntary promise;

 9         5.  Received written notice from any state agency or

10  any court directing him to submit to genetic testing which he

11  disregarded;

12         6.  Signed a voluntary acknowledgment of paternity; or

13         7.  Proclaimed himself to be the biological father of

14  the child.

15         (3)  If the movant fails to make the requisite showing

16  provided in subsection (2), the court shall deny the motion

17  and dismiss the case.

18         (4)  If the court finds by clear and convincing

19  evidence that the male is not the father of the child, it

20  shall grant relief that is limited to the issues of

21  prospective child support payments and past due child support

22  payments.

23         (5)  The duty to pay child support and other legal

24  obligations for the child may not be suspended during the time

25  the motion is pending except for good cause shown. However,

26  the court may order that the child support be held in the

27  registry of the court until a final determination of paternity

28  is made.

29         (6)(a)  In any action brought under this section, if

30  the genetic test results submitted in accordance with

31  paragraph (1)(b) are provided solely by the male ordered to

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    Florida Senate - 2005                                  SB 1456
    6-964-05




 1  pay child support, the court on its own motion may, and on the

 2  motion of any party shall, order the mother of the child, the

 3  child, and the male ordered to pay child support to submit to

 4  genetic tests. The court must provide that the genetic tests

 5  be conducted no more than 30 days after the court issues its

 6  order.

 7         (b)  If the mother of the child or the male ordered to

 8  pay child support willfully fails to submit to genetic

 9  testing, or if either party is the custodian of the child and

10  willfully fails to submit the child for testing, the court

11  shall issue an order determining relief on the motion against

12  the party who fails to submit to genetic testing. If a party

13  shows good cause for failing to submit to genetic testing, the

14  failure may not be considered willful.

15         (c)  The party requesting genetic testing shall pay any

16  fees charged for the tests. If the custodian of the child is

17  receiving public assistance under chapter 414, the Department

18  of Children and Family Services shall pay the cost of genetic

19  testing if it requests the tests and may seek reimbursement

20  for the fees from the person against whom the court assesses

21  the costs of the action.

22         (7)  If relief on a motion filed in accordance with

23  this section is not granted, the court shall assess the costs

24  of the action and attorney's fees against the movant.

25         Section 2.  This act shall take effect July 1, 2005.

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    Florida Senate - 2005                                  SB 1456
    6-964-05




 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that a male who is required to pay child support
      as the father of a child may file a motion to set aside a
 4    determination of paternity at any time. Requires that the
      motion include an affidavit and the results of a genetic
 5    test. Provides the conditions the male ordered to pay
      child support must satisfy in order to have the motion
 6    granted. Requires the court to deny the motion if all
      conditions are not satisfied. Requires a court to find
 7    all conditions met if supported by clear and convincing
      evidence. Provides that the duty to pay child support and
 8    other legal obligations is not suspended during the time
      the motion is pending. Authorizes the court to order that
 9    the child support be paid into the registry of the court
      until paternity is determined. Provides that the court
10    may order additional testing under certain circumstances.
      Requires a court to assess the costs of the action and
11    attorney's fees against the movant if the motion is not
      granted.
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