Posted by Nydia Streets of Streets Law in Florida Child Support

When a child is born as a result of an extramarital affair, complications may arise with regard to paternity of the child. In the case Fla. Dep't of Revenue v. Ashby, 5D19-1244 (Fla. 5th DCA April 17, 2020), the biological father of a child born outside of wedlock requested that the court dismiss a petition for child support filed against him, likely on the basis that the mother’s husband was the legal father of the child.

The biological father and the mother engaged in an extramarital affair outside of the mother’s marriage to her husband. A child was born and thereafter, the mother and her husband divorced. The mother claimed that in the divorce, the court concluded the husband was not the father of the child and ordered that he was not responsible for any child support. A petition for child support was then filed against the biological father. At the trial on the petition, the mother and the former husband did not appear. The biological father then requested a dismissal of the petition, whereupon the Department of Revenue announced it was voluntarily dismissing the petition without prejudice. The biological father insisted on the court hearing his motion to dismiss. After the court heard the motion, it entered an order dismissing the case with prejudice.

The Department of Revenue appealed, and the trial court’s order was reversed. The appellate court held the trial court lost jurisdiction to hear the motion to dismiss once the Department of Revenue announced its voluntary dismissal on the record. The court stated “DOR had the right to voluntarily dismiss its action by stating its dismissal on the record before submitting its case to the trial court for decision. See Fla. Fam. L. R. P. 12.420(a)(1)(A)[. . .]. Its voluntary dismissal immediately ended the litigation and instantly divested the trial court of jurisdiction. [citation omitted]. Accordingly, the trial court lacked jurisdiction to grant [the biological father’s] motion to dismiss. On remand, the trial court shall vacate its order dismissing the case with prejudice.”

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