Paternity Test: Florida 'Father' May Cite Law To Cry Fraud

Parker v. Parker, from the Supreme Court of Florida was decided February 1, 2007. The parties married in 1996, the child was born in 1998, a 2001 divorce decree incorporated an agreement for child support and the husband did not have a paternity test until 2003. The wife's misrepresentation of paternity was held to be intrinsic fraud and therefore a husband must seek relief from a judgment within one year.

We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present. . . . The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
[Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003)] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol’y 269, 275 (2001)).

The Miami Herald reported the story yesterday, Paternity test: 'Father' may cite law to cry fraud.

In delving into the often-vicious world of divorce and paternity cases, the high court failed to discuss Florida's ''paternity fraud'' law that the Legislature passed last year, when male lawmakers inveighed against deceptive women, and female legislators fretted about callous men abandoning children.

The new law gives men the right to avoid child-support payments if they gain ''newly discovered evidence'' that the child isn't theirs. The law requires the man to file a court petition 90 days after getting the paternity test.

Whether it will apply to Parker's long-standing case or other old paternity cases in the courts is unclear, said his Miami lawyer, Scott A. Lazar, who is considering filing a challenge under the new law. Lazar said he's sure the law will help blunt what would be a bad result from Thursday's court ruling.

''If there was not this new law, the effect of this decision would make paternity an issue in every divorce case,'' Lazar said. ``The advice you would have to give your client is to get a paternity test now, otherwise, he couldn't do anything after a year if the child isn't his.''

Query: If the new statute wasn't argued on appeal, how does this obligor expect relief in his case?

Thanks to Howard Basham at How Appealing for posting the link to the case and to Marcia Oddi at Indiana Law Blog for letting me know it was available online. Stan Billingsly at LawReader also reports on the recent unpublished opinions that address the issue in Kentucky from an equitable estoppel argument. However, now that we have the Kentucky Supreme Court decision in Denzek (see post here and digest here) damages for fraud can be obtained very late in a child's life in Kentucky.