Florida Senate - 2018                             CS for SB 1022
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Steube
       
       
       
       
       586-02341-18                                          20181022c1
    1                        A bill to be entitled                      
    2         An act relating to the determination of parentage;
    3         creating s. 742.19, F.S.; defining the term “alleged
    4         parent”; providing presumptions of legal parentage;
    5         authorizing a child, the child’s mother, or the
    6         child’s alleged parent to file a petition in circuit
    7         court to rebut the presumption of legal parentage;
    8         requiring such petition to include certain
    9         information; requiring the court to appoint a guardian
   10         ad litem or an attorney ad litem under certain
   11         conditions; providing qualifications and requirements
   12         for a guardian ad litem; requiring the court to hold
   13         an evidentiary hearing on the petition; specifying
   14         that the petitioner has the burden of producing
   15         certain clear and convincing evidence; requiring the
   16         court to dismiss the petition under certain
   17         circumstances; requiring the court to order genetic
   18         testing of the child and the alleged parent if the
   19         court allows the petition to proceed; requiring
   20         certain information to be included in the order;
   21         requiring the alleged parent to file the test results
   22         with the court by a specified date; specifying that a
   23         statistical probability of parentage of 95 percent or
   24         more creates a rebuttable presumption that the alleged
   25         parent is a biological parent; providing a procedure
   26         for a party to object to the test results; authorizing
   27         the court to enter a summary judgment of parentage and
   28         requiring the court to hold a trial if a presumption
   29         of parentage is established; requiring the court to
   30         dismiss the petition and seal the court file if the
   31         test results indicate that the alleged parent is not a
   32         biological parent; requiring the court to determine
   33         parental rights in the best interest of the child;
   34         requiring the court to evaluate specified factors to
   35         determine the best interest of the child; providing
   36         information to be included in final orders or
   37         judgments; authorizing the court to approve, grant, or
   38         modify a parenting plan in the best interest of the
   39         child and under certain conditions; requiring that a
   40         parenting plan include certain information;
   41         authorizing the court to order the payment of child
   42         support; requiring the court to consider certain
   43         criteria in its calculation of child support;
   44         authorizing the court to modify a parenting plan or
   45         child support order entered pursuant to this section
   46         upon a showing by the parent petitioning for
   47         modification that a substantial change in
   48         circumstances has occurred; clarifying that an order
   49         entered under this section does not impugn or affect a
   50         child’s legitimacy; amending s. 61.046, F.S.;
   51         clarifying that a parenting plan entered under a
   52         specified section determines the rights of custody and
   53         access for purposes of the Uniform Child Custody
   54         Jurisdiction and Enforcement Act, the International
   55         Child Abduction Remedies Act, and the Convention on
   56         the Civil Aspects of International Child Abduction;
   57         providing an effective date.
   58          
   59  Be It Enacted by the Legislature of the State of Florida:
   60  
   61         Section 1. Section 742.19, Florida Statutes, is created to
   62  read:
   63         742.19Establishment of parentage for children born in
   64  wedlock or when parentage is otherwise established by law.—
   65         (1) As used in this section, the term “alleged parent”
   66  means a person with a reasonable and well-founded belief that he
   67  or she is a child’s biological parent.
   68         (2)A person is presumed to be the legal parent of a child
   69  when:
   70         (a)At the time of the child’s conception or birth, the
   71  person was married to the child’s mother; or
   72         (b)Parentage has been established under s. 742.091, s.
   73  742.10, or s. 742.105.
   74         (3)The child, the child’s mother, or the child’s alleged
   75  parent may seek to rebut the presumption of legal parentage in
   76  subsection (2) by filing a petition in circuit court. The
   77  petition must:
   78         (a)Be signed by the petitioner under oath.
   79         (b)Identify as parties the mother, the mother’s spouse,
   80  the alleged parent, and any other person who may be the parent.
   81         (c)Provide specific facts to support a claim that the
   82  alleged parent is the biological parent of the child, that the
   83  alleged parent has demonstrated a substantial interest in or
   84  concern for the welfare of the child, and that it is in the best
   85  interest of the child to establish the alleged parent as the
   86  legal parent of the child.
   87         (4)(a)The court must appoint a guardian ad litem for the
   88  child unless good cause is shown that a guardian ad litem is not
   89  necessary to protect the best interest of the child. The person
   90  appointed as a guardian ad litem must meet the qualifications in
   91  s. 61.402, shall have the powers and authorities described in s.
   92  61.403, shall be immune from liability pursuant to s. 61.405,
   93  and must maintain confidentiality in accordance with s. 61.404,
   94  unless otherwise specified by a court order.
   95         (b) If the court determines that the child is of sufficient
   96  age and understanding to participate in the proceedings, the
   97  court must appoint an attorney ad litem for the child in lieu of
   98  a guardian ad litem unless good cause is shown that an attorney
   99  ad litem is not necessary to protect the best interest of the
  100  child.
  101         (5)(a)The court shall hold an evidentiary hearing on the
  102  petition and the petitioner has the burden to produce clear and
  103  convincing evidence that:
  104         1.The alleged parent has demonstrated a substantial
  105  interest in or concern for the welfare of the child; and
  106         2.The best interest of the child would be served by
  107  allowing the petition to proceed.
  108         (b) In making its determination, the court shall give
  109  particular weight to the fact that the mother is deceased or
  110  incapacitated, or that the mother seeks or obtains a dissolution
  111  of her marriage to her spouse.
  112         (c)If the court determines that the alleged parent has not
  113  demonstrated a substantial interest in or concern for the
  114  welfare of the child or that the best interest of the child
  115  would not be served by allowing the petition to proceed, the
  116  court must dismiss the petition and seal the court file.
  117         (6)(a)If the petition is allowed to proceed under
  118  subsection (5), the court must order the child and the alleged
  119  parent to submit to genetic testing conducted by a qualified
  120  technical laboratory, as defined in s. 409.256, to determine the
  121  probability of parentage. Upon the entry of the order for
  122  scientific testing, the court must inform each person to be
  123  tested of the procedures and requirements for objecting to the
  124  test results and of the consequences of the failure to object.
  125         (b) The alleged parent shall file the test results,
  126  together with the opinions and conclusions of the test
  127  laboratory, with the court no later than 15 days after the test
  128  results are issued. Test results are admissible in evidence and
  129  should be weighed along with other evidence of the parentage of
  130  the alleged parent unless the statistical probability of
  131  parentage equals or exceeds 95 percent. A statistical
  132  probability of parentage of 95 percent or more creates a
  133  rebuttable presumption, as defined in s. 90.304, that the
  134  alleged parent is a biological parent of the child.
  135         (c) Any objection to the test results must be made in
  136  writing and must be filed with the court no later than 30 days
  137  after the test results are filed or as otherwise specified by
  138  the court.
  139         1. If no objection is filed, the test results shall be
  140  admitted into evidence without the need for predicate to be laid
  141  or third-party foundation testimony to be presented.
  142         2. If an objection is filed, the court must hold an
  143  evidentiary hearing. Nothing in this paragraph prohibits a party
  144  from calling an outside expert witness to refute or support the
  145  testing procedure or results, or the mathematical theory on
  146  which they are based. If the test results or the expert analysis
  147  of the inherited characteristics is disputed, the court, upon
  148  reasonable request of a party, must order that an additional
  149  test be made by the same laboratory or an independent laboratory
  150  at the expense of the party requesting additional testing.
  151         (d) If no objection is filed or if a party fails to rebut
  152  the presumption of parentage which arose from the statistical
  153  probability of parentage of 95 percent or more, the court may
  154  enter a summary judgment of parentage and must hold a trial
  155  pursuant to subsection (7). If the test results indicate that
  156  the alleged parent is not a biological parent, the court must
  157  dismiss the petition and seal the court file.
  158         (7)If the genetic testing establishes that the alleged
  159  parent is the biological parent of the child, the court must
  160  hold a trial to determine whether:
  161         (a)The mother’s spouse remains the legal parent of the
  162  child based on the best interest of the child;
  163         (b)The parentage and legal rights and obligations of the
  164  mother’s spouse are terminated and granted to the biological
  165  parent; or
  166         (c)The mother, mother’s spouse, and biological parent must
  167  share parental rights and responsibilities.
  168         (8)To determine the best interest of the child, the court
  169  shall evaluate all of the following:
  170         (a)The established bond between the child and the mother’s
  171  spouse, including love, affection, and emotional ties.
  172         (b)The established bond between the child and the
  173  biological parent, including love, affection, and emotional
  174  ties.
  175         (c)The permanence and stability of the child’s current
  176  family unit or units, including the length of time the child has
  177  lived in a satisfactory environment and the desirability of
  178  maintaining continuity or creating stability.
  179         (d)The capacity and disposition of the mother’s spouse and
  180  the biological parent to provide for the child’s financial
  181  needs.
  182         (e)The moral fitness of the mother’s spouse and the
  183  biological parent.
  184         (f)The mental and physical health of the mother’s spouse
  185  and the biological parent.
  186         (g)The home, school, and community record of the child.
  187         (h)The preference of the child, taking into consideration
  188  the child’s age and understanding.
  189         (i)Whether the mother’s spouse or the biological parent
  190  has abandoned, abused, or neglected the child, or has otherwise
  191  been remiss in his or her responsibilities toward the child.
  192         (j)Whether the mother’s spouse or the biological parent
  193  has ever acted contrary to the best interest of the child.
  194         (k)Whether the mother’s spouse or the biological parent
  195  wishes to exercise or continue to exercise parental rights.
  196         (l) Whether the mother is deceased or incapacitated.
  197         (m) Whether the mother seeks or obtains a dissolution of
  198  her marriage to the spouse.
  199         (n)Any other factor affecting the welfare and interests of
  200  the child and the circumstances of that family.
  201         (9)(a) If the court determines that it is in the best
  202  interest of the child for the mother’s spouse to remain the
  203  legal parent of the child to the exclusion of the biological
  204  parent, the court must dismiss the petition and seal the court
  205  file.
  206         (b) If the court determines that it is in the best interest
  207  of the child for the parental rights of the mother’s spouse to
  208  be terminated and the biological parent to be the legal parent
  209  of the child, the court must enter a final order or judgment:
  210         1. Terminating the parental rights and responsibilities of
  211  the mother’s spouse, declaring that the biological parent is the
  212  legal parent of the child, and specifying the biological
  213  parent’s parental rights and responsibilities, including, but
  214  not limited to, time-sharing and child support.
  215         2.Requiring that the biological parent’s name be
  216  substituted on the child’s birth certificate and the mother’s
  217  spouse’s name be removed.
  218         (c) If the court determines that the mother’s spouse and
  219  the biological parent have each established a substantial
  220  relationship with the child and that it is in the best interest
  221  of the child for both the mother’s spouse and the biological
  222  parent to be the child’s legal parents, the court shall enter a
  223  final order or judgment:
  224         1. Preserving the parental rights of the mother’s spouse.
  225         2. Establishing the biological parent’s parental rights and
  226  responsibilities as the child’s third legal parent.
  227         3. Requiring the Office of Vital Statistics of the
  228  Department of Health to amend the child’s birth certificate to
  229  add the third legal parent.
  230         4. Declaring that each legal parent is recognized as an
  231  equal parent to the child and has equal standing to secure
  232  shared parenting rights to time-sharing, parental
  233  responsibility, and child support.
  234         (10)The court may approve, grant, or modify a parenting
  235  plan, as defined in s. 61.046, in a final order or judgment
  236  entered pursuant to paragraph (9)(b) or paragraph (9)(c). A
  237  parenting plan may be developed and agreed to by all legal
  238  parents and approved by a court or may be established by the
  239  court.
  240         (a) The court must consider the factors listed in s.
  241  61.13(3) to determine the best interest of the child before
  242  approving or establishing a parenting plan. The best interest of
  243  the child should govern and be of foremost concern in the
  244  court’s approval of or establishment of a parenting plan.
  245         (b)The court may approve or establish a parenting plan,
  246  regardless of whether the child is physically present in this
  247  state, if the court finds that the child was removed from this
  248  state for the primary purpose of removing the child from the
  249  court’s jurisdiction in an attempt to avoid the court’s
  250  approval, creation, or modification of the parenting plan.
  251         (c)A parenting plan approved or established by the court
  252  must describe the shared responsibilities for the daily tasks of
  253  parenting; the time-sharing schedule specifying the time the
  254  child will spend with each parent; a designation of which parent
  255  will be responsible for health care, school-related matters, and
  256  extracurricular activities; the address to be used for school
  257  boundary determination and registration; and the means of
  258  communication or technology which the parents will use to
  259  communicate with the child.
  260         (d)The court shall determine matters relating to the
  261  parenting and time-sharing of each child of the parties in
  262  accordance with the Uniform Child Custody Jurisdiction and
  263  Enforcement Act, part II of chapter 61.
  264         (11) The court may order the payment of child support by
  265  any legal parent or parents owing a duty of support in a final
  266  order or judgment entered pursuant to paragraph (9)(b) or
  267  paragraph (9)(c). When calculating child support, the court
  268  shall:
  269         (a)1.For an order entered pursuant to paragraph (9)(b),
  270  calculate support obligations pursuant to s. 61.30.
  271         2. For an order entered pursuant to paragraph (9)(c),
  272  ensure that the child receives the same full benefit of the
  273  total child support as a child would receive under the
  274  guidelines schedule in s. 61.30.
  275         (b) Consider each deviation factor listed in s.
  276  61.30(11)(a) to ensure that the distribution of the child
  277  support is fair and equitable.
  278         (12) The court may modify a parenting plan or child support
  279  order entered pursuant to this section upon a showing by the
  280  parent petitioning for modification that a substantial change in
  281  circumstances has occurred.
  282         (13)An order entered pursuant to this section does not
  283  impugn or affect a child’s legitimacy.
  284         Section 2. Paragraphs (c) and (d) of subsection (14) of
  285  section 61.046, Florida Statutes, are amended to read:
  286         61.046 Definitions.—As used in this chapter, the term:
  287         (14) “Parenting plan” means a document created to govern
  288  the relationship between the parents relating to decisions that
  289  must be made regarding the minor child and must contain a time
  290  sharing schedule for the parents and child. The issues
  291  concerning the minor child may include, but are not limited to,
  292  the child’s education, health care, and physical, social, and
  293  emotional well-being. In creating the plan, all circumstances
  294  between the parents, including their historic relationship,
  295  domestic violence, and other factors must be taken into
  296  consideration.
  297         (c) For purposes of the Uniform Child Custody Jurisdiction
  298  and Enforcement Act, part II of this chapter, a judgment or
  299  order incorporating a parenting plan under this part or under s.
  300  742.19 is a child custody determination under part II of this
  301  chapter.
  302         (d) For purposes of the International Child Abduction
  303  Remedies Act, 42 U.S.C. ss. 11601 et seq., and the Convention on
  304  the Civil Aspects of International Child Abduction, enacted at
  305  the Hague on October 25, 1980, rights of custody and rights of
  306  access are determined pursuant to the parenting plan under this
  307  part or under s. 742.19.
  308         Section 3. This act shall take effect July 1, 2018.