Married Couples, Infidelity, and Paternity

Under Florida law, a married woman's child is presumed to be the offspring of her husband. However, there are instances in which a married woman can allege that her child is the result of an extramarital affair. This will allow her to maintain an action for paternity and support against the man she was involved with, whether he is married or not. The Fl. Dept. of Revenue will bring suit on her behalf which includes establishing paternity. However DOR is bound by law to follow a special process before requiring the man to submit to a DNA test. The 5th DCA recently issued a ruling that confirms the process the Dept. of Revenue must take in order to maintain a paternity action in situations like the one described above. Privette is the seminal case that lays out the proper procedure to handle situations in which a mother seeks to collect child support from an alleged biological father, instead of her husband (the legal father).

Key provisions of Privette include the requirement that a mother in this situation has to present clear and compelling reasons based on the minor child's best interests to overcome the presumption that her husband is not the legal father of the minor child.First the Court must appoint a guardian ad litem, then hear evidence from all parties involved and determine whether it would be in the minor child's best interests to sever the presumption of legitimacy and declare another man the "legal father." It is important to note that even if a minor child turns out to be the biological child of another, this in and of itself would not be enough for the court to declare the biological father as the legal father.

In Alls v. DOR, the respondent, also the alleged biological father refused to submit to a DNA testing. The Department of Revenue entered an order declaring respondent the legal father and issued an income deduction order for monthly support payments. These steps were taken without the protections provided by Privette. The 5th DCA , quashed the lower court's ruling and held that a trial court must conduct a Privette hearing before requiring an alleged biological father to submit to a DNA test.

Nix Law P.A. handles all types of support cases, including complicated cases like the one detailed above. If you or someone you know is facing a paternity action, let us help protect your rights.

For more information on this appeal and to follow the updates, please click here: http://www.5dca.org/Opinions/Opin2014/050514/5D13-3711.op.pdf

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  • Mikaela Nix
  • Mikaela Nix Mikaela Nix
    Mikaela Nix is an Orlando attorney with experience handling Family Law (emphasis on Fathers’ rights). Her aggressive and diligent representation has proven invaluable in making sure her clients know without a doubt that the lawyer advocating for them is committed to advancing their interests.
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