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Should a father be required to support a child that he erroneously believed was his? It depends on when he discovered the child was not his, Florida’s 4th District Court of Appeal declared last week. In this case, the court upheld the dismissal of a father’s petition to end his child support payments – even though the child turned out not to be his – because the father figured it out too late. Richard and Margaret Parker were married in June 1996, and Margaret gave birth to a child in June 1998. In December 2001, the couple agreed to a divorce settlement, obligating Richard to pay $1,200 per month in child support. Throughout the marriage, Margaret told Richard the child was his, and repeated that claim in front of the judge during the divorce proceedings. In June 2002, Richard filed a petition in Broward Circuit Court seeking relief from his child support obligations, based on alleged fraud by his ex-wife. He claimed she had an affair with another man and that she always knew the child was not his. Judge Rene Goldenberg dismissed Richard’s petition, finding that the divorce decree established paternity and that any challenge must be filed within a year of the decree. In 2003, Richard had a DNA test performed on the child after Margaret alleged that he was behind on child support payments. The test revealed he was not the father of the child. In March 2004, Richard appealed Goldenberg’s dismissal of his case. In its ruling last week, a three-judge panel of the District Court acknowledged that the case was difficult and troubling. “Because we are faced here with an attempt to upset the marital presumption of legitimacy in favor of a conclusion of illegitimacy and adultery, we are in territory ‘fraught with difficult social issues,’” the panel said, in a decision written by Judge Carole Y. Taylor, quoting from a 1998 District Court case concerning a similar situation. The panel noted that “advancing technology has made the temptation to DNA test a child even greater,” referring the relatively new practice of using hair samples or oral swab instead of a blood. “Thus the instant case presents a question which can be expected to recur with increasing frequency.” The panel said a 1997 Supreme Court case decision reaffirmed a 2nd District Court holding that people should not be obligated to care for a child that is not theirs. If Richard had submitted DNA tests at the time of the divorce decree, the panel said, he would have been freed of his child support obligations under that 1997 ruling. But he did not. “Because he did not present these test results until more than a year after the dissolution decree,” the court said because it “runs headlong” into the legal principle of not deciding legal questions already previously decided by another court. The panel cited a 1993 3rd District Court decision that held that redetermining paternity is barred because the divorce decree establishes paternity by referring to “minor children born of the marriage.” The panel noted that other courts have come to the same position, including the state Supreme Court in 1984 and 2002. In a footnote, the 4th District Court declared that there is no statute of limitations to seek relief from fraud based on fraudulent financial affidavits in family law cases, “However, the Florida Supreme Court has not extended such relief to those in the former husband’s situation by adopting a similar rule to permit paternity challenges based on DNA testing at any time.” The panel said parents seeking to redetermine paternity can seek relief based on fraud, but they must show extrinsic fraud. States and the various Florida courts are split on whether actions like Margaret’s concealment of paternity constitutes extrinsic fraud. The 1st District Court found that such concealment constituted extrinsic fraud, which would not bar an action seeking relief like the one filed by Richard. But the 4th District Court disagreed with that decision in a 1990 case. In this case, it disagreed again with the 1st District Court, certifying conflict. The court then turned the question of public policy. “Because the effect of our conclusion is to create a one-year window after the divorce to perform any DNA testing or be forever barred, we now discuss whether a time-based limitation is supportable as a matter of law.” The panel declared that “there may be some merit in telling divorcing fathers who are in doubt to ‘test now, or forever hold your peace.’” The panel said the main issue is finality – that children who have grown up considering a parent as a father could be psychologically damaged if a parent does not want to pay child support for a child that is not theirs. The panel noted that most states consider maintaining family ties a stronger consideration than lifting a financial obligation from a father, while some establish deadlines for paternity testing. “Any relevant policy considerations that would compel a different result are best addressed by the Legislature,” the panel said. Judges Martha C. Warner and Larry A. Klein of the 4th District Court concurred with Taylor’s opinion. Scott A. Lazar of Koltun & Lazar represented Richard Parker. No attorney represented Margaret Parker on appeal. This article originally appeared in the Daily Business Review , a publication of ALM.

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