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    cathygist's Avatar
    cathygist Posts: 3, Reputation: 1
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    #1

    Jul 31, 2007, 09:06 AM
    Paternity issues in Florida
    I will try to make this question as brief as possible.
    My husband had an affair with a married woman and had a baby as a result of the affair. A personal DNA test was performed when the baby was one month old and revealed my husband was the father. The mother granted verbal visitation every other weekend and also met up with him two to three times a week to visit with his child. Her husband didn't find out about the paternity until this May. The mothers husband has not allowed any further contact and threatened the mother with divorce if she allows future contact between my husband and his child. We are now involved in litigation and in the State of Florida the husband is automatically presumed to be the father of the child and the mother is now lying about her knowledge of the paternity test and indicated my husband was nothing more than a babysitter. The judge on the case will not even look at our side of the story and now we have to appeal the order. Is there anything else we can be doing to help our case. I don't feel its right that my husband has no rights as a father. He is not the only one at fault in this situation but yet he is the only one being punished. My children have already developed a relationship with their sister and all of my husbands family has also developed a relationship with her as well. But now all of that is being taken away just because the mother is married!
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #2

    Jul 31, 2007, 02:23 PM
    How old is the child?How the husband found out the truth about paternity?Are they still married?Do they have other children?Why your husband did not explain it to him when the baby was one month old?
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #3

    Jul 31, 2007, 03:56 PM
    I do not think that you will prevail on appeal. It is true that the child was conceived when the mother is lawfully married and living with her husband. This child was conceived through an act of adultery. Some religious and political commentators suggest that these children are simply a manifestation of society's collapsing morals.
    There are two main cases in Florida which are important to all court decisions.They are:

    Privette v. Department of HRS
    DANIEL V. DANIEL
    Other main case is I.A. v. H.H./ IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT , Case No. 96-05218. There the court found that” In this litigation involving the parentage of a young child… We conclude that the biological father had no right to bring the action.”

    Issues involving the children born into an established, functioning marriage, are resolved under section 742.304. It makes no provision for private agreements and provides no option to eliminate a legal father for these children.
    For these children, the statute honors the old presumption of legitimacy to the extent that the marital father will be the legal father unless it is in a child's best interests to shift that status to the biological father. No valid policy reason exists to create circumstances allowing married couples to eliminate a legal father for such a child through litigation even if the couple is in the midst of a divorce. Such an option would encourage divorce and breakup of family units with little to be gained in the process. Largely codifies the procedures suggested in Privette by allowing an action to be filed to shift the status of legal father from the marital father to the biological father. Normally, an action must be filed by the husband or wife within two years of the child's birth. If the putative biological father is a willing participant, the action may be filed within five years.
    The statute of limitations uses a one-year period, rather than a two-year period, as the basic provision. It also establishes a two-year period of repose if the petitioner did not or could not have known of the child's birth within the first year. If the biological father discovers his claim between the first and second year, he must bring the action within N I N E T Y DAYS of discovery. Arguably, it would be simpler to use a two-year limitations period. Given the rapidity with which infants bond with parents in a family setting, an action by an outsider should be filed in a manner that would allow the issues to be resolved, rather than initiated, within two years.
    Second, a couple in a stable marriage can block such a lawsuit when it is filed concerning children born into an established, functioning marriage.. This is consistent with existing law.
    Prior to any scientific testing, the court shall appoint a guardian ad litem to represent the child, unless it enters an order stating specific reasons a guardian is unnecessary. The scope and method of the guardian's investigation shall be specified in the order of appointment and the guardian shall have immunity .
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #4

    Jul 31, 2007, 03:59 PM
    Then please allow me to respectfully retract of your position.You “don't feel its right that my husband has no rights as a father. He is not the only one at fault in this situation but yet he is the only one being punished.”
    You said”rights” but what about moral,duties,obligations? You do not think the cuckolded husband is punished,do you?Are you and your husband willing to pay $$$ $$$ as moral damages?To impregnated another man's wife and to allow him to believe that he WAS the father…even you know the truth about paternity of the child…
    s_cianci's Avatar
    s_cianci Posts: 5,473, Reputation: 760
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    #5

    Aug 1, 2007, 09:55 AM
    Has there been a formal adjudication of paternity? If not, your husband should apply to the court for one at once. With the results of the DNA test it should be cut and dry. He also needs to apply for court-ordered visitation.
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    cathygist Posts: 3, Reputation: 1
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    #6

    Aug 1, 2007, 01:07 PM
    Thank you for your answers and honesty GV70.

    The child is now 11 months old. There were reasons the husband was not told which was a decision made by his wife. Me and my husband were trying to work on our marriage and allowed the other woman to wait until she felt comfortable to tell her husband. I know that was a big mistake on our part but we thought by letting her wait until the right time to tell him she would be able to save her marriage. Finally after she made many excuses of why she couldn't tell him we finally told her that if she didn't tell him we would. Needless to say he already knew from the beginning anyway when his wife told him it just confirmed the truth.

    I can't even imagine what her husband is going through but by the same token out of his four children only one of them is his biological child. His wife has had multiple affairs resulting in children by different men. I know everyone is going to make my husband out to look like the bad guy for having an affair but in my opinion the mother is just as much if not more to blame in my particular situation. The mother had a relationship with my husband before during and after the child's birth. She called him every day updating him on his child and met with him 2-3 times a week to visit with the child. And like I said before she allowed us to keep the child overnight sometimes 3-4 days at a time every other weekend. She told us from the beginning that once she told her husband she would not keep the child from my husband and would allow a relationship.

    My problem with this situation is if she wanted a court ordered DNA test it would be approved. If she and her husband get divorced (which will more than likely happen sometime in the future due to her behavior) the husband can dispute his paternity of the child and then at that point my husband can have a DNA test. But if my husband wants one it is denied. It just doesn't make sense. So while the husband may be considered her "legal Father" how long is that going to last? My husband on the other hand is going to be her biological father for life, that won't change.

    It's a bad situation, it shouldn't have happened but it did. Let me ask you, if you fathered a child and were told you can never see him/her again after developing a beginning you would be seeing this situation a little differently. No one can ever say what they would have, could have or should have done in a situation until they are faced with it.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #7

    Aug 1, 2007, 01:19 PM
    Quote Originally Posted by cathygist
    My problem with this situation is if she wanted a court ordered DNA test it would be approved. If she and her husband get divorced (which will more than likely happen sometime in the future due to her behavior) the husband can dispute his paternity of the child and then at that point my husband can have a DNA test. But if my husband wants one it is denied. It just doesn't make sense. So while the husband may be considered her "legal Father" how long is that going to last? My husband on the other hand is going to be her biological father for life, that won't change. .
    The Statute of limitations is two years/after child's birth/ or

    If the biological father discovers his claim between the first and second year, he must bring the action within N I N E T Y DAYS of discovery


    Quote Originally Posted by cathygist
    It's a bad situation, it shouldn't have happened but it did. Let me ask you, if you fathered a child and were told you can never see him/her again after developing a beginning you would be seeing this situation a little differently. No one can ever say what they would of, could of or should of done in a situation until they are faced with it.
    I do not know. I am happy married and I love my wife:) :)
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #8

    Aug 1, 2007, 01:25 PM
    Quote Originally Posted by cathygist
    My problem with this situation is if she wanted a court ordered DNA test it would be approved. If she and her husband get divorced (which will more than likely happen sometime in the future due to her behavior) the husband can dispute his paternity of the child and then at that point my husband can have a DNA test. But if my husband wants one it is denied. It just doesn't make sense.


    It makes sense... It is Public policy.Let us immagine a situation where some men want to destroy another man's family life and file for paternity testing because they also fu. Ked his wife...
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #9

    Aug 1, 2007, 01:33 PM
    Legaly speaking... your husband does not have any rights because he missed his three months limit for action.If the husband resists to your visitation he has right to ask for restraining order against you.If they get divorce now and the mother wants to dispute her husband's legal paternity the GAL will express an opinion whether it will be in child's interest .If the mother prevail over her husband your husband has to be adjudicated as a legal father and to pay to the ex-husband retroactive child support and also he has right to sue your husband for moral damages.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #10

    Aug 2, 2007, 12:38 AM
    Quote Originally Posted by cathygist
    Me and my husband were trying to work on our marriage and allowed the other woman to wait until she felt comfortable to tell her husband. I know that was a big mistake on our part but we thought by letting her wait until the right time to tell him she would be able to save her marriage. Finally after she made many excuses of why she couldn't tell him we finally told her that if she didn't tell him we would.
    Big mistake?No-the legal term is INTENTIONAL FRAUD:)
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    #11

    Aug 2, 2007, 06:10 AM
    Can you tell me where you are getting your information on the statute of limitations and also where you found your information on where her husband has the right to sue for moral damages.

    Thanks
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    ScottGem Posts: 64,970, Reputation: 6056
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    #12

    Aug 2, 2007, 06:27 AM
    Quote Originally Posted by cathygist
    It's a bad situation, it shouldn't have happened but it did. Let me ask you, if you fathered a child and were told you can never see him/her again after developing a beginning you would be seeing this situation a little differently. No one can ever say what they would of, could of or should of done in a situation until they are faced with it.
    First, you should use the quote feature to make sure its clear who you are addressing.

    As for the info GV70 found, I believe he cited the sources in an earlier post. If not he'll be along soon to answer. But I wanted to address the above quote.

    I don't think any of use do not sympathize with your husband's predicament. I believe he's doing the right thing about being a father to the child. But what GV70 is saying is that its not a matter of feelings or emotion. It's a matter of law. The law in this case sides with the legal husband to establish paternity. This is to protect the husband and wife from someone trying to wreck their marriage. No law would be fair to all sides in this instance.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #13

    Aug 2, 2007, 07:02 AM
    Quote Originally Posted by cathygist
    Can you tell me where you are getting your information on the statute of limitations and also where you found your information on where her husband has the right to sue for moral damages.

    Thanks
    Look at Florida family code AND DO NOT ASK STUPID QUESTIONS.
    You are very funny... If you can use your brain you can understand that to let a cuckolded husband to believe that he was the father for 11 months when you know the truth it is AN INTENTIONAL FRAUD.
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    #14

    Aug 2, 2007, 07:08 AM
    Quote Originally Posted by GV70
    Look at Florida family code AND DO NOT ASK STUPID QUESTIONS.
    You are very funny ...If you can use your brain you can understand that to let a cuckolded husband to believe that he was the father for 11 months when you know the truth it is AN INTENTIONAL FRAUD.
    Correct.All points are good!
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #15

    Aug 2, 2007, 07:19 AM
    Quote Originally Posted by cathygist
    where you found your information on where her husband has the right to sue for moral damages.

    Thanks
    Kudos for this question:D :D
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #16

    Aug 2, 2007, 04:58 PM
    OK
    Florida Statutes

    742.011 Determination of paternity proceedings; jurisdiction.--Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.
    In Florida the husband is presumed to be the father of the child/ren/ born within his marriage.

    742.091 Marriage of parents.--If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in s. 742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

    742.18 Disestablishment of paternity or termination of child support obligation.
    (1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation. The petition must be served on the mother or other legal guardian or custodian of the child.The petition must include:

    No other person exceptthe husband has right to ask disestablishment.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #17

    Aug 2, 2007, 05:04 PM
    742.18 (1)b

    The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.


    798.01 Living in open adultery.--Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section
    798.02 Lewd and lascivious behavior.--If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
    GV70's Avatar
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    #18

    Aug 2, 2007, 05:19 PM
    429.297 Punitive damages; pleading; burden of proof.--
    2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

    (a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

    (b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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