Posted by Nydia Streets of Streets Law in Florida Paternity

What is the difference between a legal father and a biological father in Florida? In what might seem like a paradox, the legal father might not be the biological father and the biological father might not be the legal father. Biology is not the determining factor in deciding paternity in Florida. If a child is born during a marriage, the husband is presumed to be the legal father of the child even if a DNA test reveals he and the child are not biologically related. This is illustrated in the case Schmidt v. Nipper, 1D19-2416 (Fla. 1st DCA January 21, 2020).

The child who is the subject of this case was born during the mother’s marriage to a man who turned out not to be the biological father of the child. At some point, a dependency proceeding was initiated against the mother resulting in the child being placed in the custody of her legal father, the mother’s husband. The biological father filed a paternity petition which was denied after the trial court found that the child was born during the mother’s marriage and that the legal father had asserted his rights.

More than one year after the judgment was entered denying his paternity petition, the biological father filed a motion to set aside the judgment under Fla. Fam. L. R. P. 12.540. He argued “the trial court improperly disposed of his petition to determine paternity without hearing from [the mother] or [legal father], considering the child's best interests, appointing a guardian ad litem, or taking testimony regarding the appellant's prior substantial relationship with [the legal father]. He claimed that extrinsic fraud occurred because the Department of Children and Families (DCF) prevented him from participating in the dependency case. He further asserted that in the paternity case, extrinsic fraud occurred and/or the order is void because he was not given the opportunity to establish standing and his due process rights were violated.” The mother filed an answer supporting the biological father’s position and stating it was in the child’s best interest to have a relationship with the biological father.

After a hearing on the motion to set aside, the trial court entered an order denying the same, holding there was no extrinsic fraud and the paternity case was correctly decided in favor of the legal father. The court also expressed concern as to the late timing of the biological father’s motion. The biological father appealed and the trial court’s ruling was affirmed. The appellate court held “To seek relief pursuant to rule 1.540(b)(5) or 12.540(b)(5), an appellant must show that there are new circumstances that affect the judgment previously rendered by the trial court which make it no longer equitable for the trial court to enforce its decision. [. . . ] In the instant case, the appellant's arguments rest on the events that occurred prior to the entry of the challenged April 6, 2017, order. He argued that his due process rights were violated during the March 30, 2017, hearing on his petition to determine paternity because the issue of paternity was not fully litigated. As the appellant does not raise any new circumstances that affect the April 6, 2017, order, rules 1.540(b)(5) and 12.540(b)(5) do not apply. Therefore, this aspect of the appellant's motion to vacate was properly denied.”

Asserting paternity in a timely and appropriate fashion is crucial to preserving parental rights. Schedule a consultation to understand what steps need to be taken to do so.