Divorce Florida Style

Q:  Five years ago my girl friend gave birth to a little boy.    We broke up a year later, but worked out visitation and support issues.  To make sure that my rights, and hers, were legalized, I had an attorney file a “paternity suit”, to establish my paternity, confirm my visitation rights, and her right to receive child support in a court judgment.

I filed a petition with the court, claiming to be the father.  She filed a written response agreeing.  The judge signed a final judgment finding that I was the father and setting child support and visitation.

I have never missed a payment, nor failed to take advantage of all of my rights to be with our son.  Two years after the mom and me split, I married my high school girl friend.  We have been trying to get pregnant, but it did not seem to be working out.

During some medical tests that my wife and I took, a report came back that I was “shooting blanks”, that is, that my body was then, and had always been incapable of manufacturing sperm.  Without my former girl friend’s knowledge or permission, I had a DNA test done, comparing my DNA to that of “my son.”   Who as it turns out is not my son.

While I love the little boy, I do not think its fair for me to be responsible to pay for him for another thirteen years, and do not think its fair that he’ll never get to know his real father.  I brought this up to him mom, the last time I picked him up, and she completely denied the scientific proof.  We all went for another round of DNA tests, which confirmed the results.  After which the mother broke down, confirmed the truth, and identified the real father to me.

She finally admitted that she always knew that there was a possibility that her old boyfriend was the father by virtue of a one-night stand, when I was on summer National Guard duty in Georgia, with my unit.  What are my rights?  Can I get out of my payments? 

A:  You probably cannot get out of the child support, for a very technical, legal reason, but when comparing your case to a recent Florida Supreme Court case, the door may be slightly open.

A case called Parker v Parker, decided by the Florida Supreme Court in 2007, determined that the failure of a “wife” to be completely honest about a child’s paternity constituted “intrinsic fraud” rather than “extrinsic fraud”.

In earlier appellate court decisions, a lawsuit to set aside a judgment based on extrinsic fraud, defined as a fraud “on the court”, as well as on the person in your position, can be brought at any time, but a motion to set aside a judgment based upon intrinsic fraud, fraud on you, but not the court, must be brought within one year. This seems to be a distinction without much difference.

However, the Supreme Court in the Parker case bolstered its opinion by referring to the presumption that a child born during a marriage is legally presumed to be a child of the marriage.  As you and the mother were never married, there was never such a presumption in your case.  No one can be positive as to whether a Florida Supreme Court decision on your fact pattern would be decided.  

The process of having this issue tried by a circuit court judge , decided by a Florida District Court of Appeal, and, perhaps decided by the Florida Supreme court is long and costly process.  Due consideration should also be give to the emotional cost to the child.

Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.  Questions may be submitted to Mr. Gora at mhgora@sbwlawfirm.com.