Defining the Child – Parent Relationship Establishing Paternity and Maternity The Importance of Marriage – Historical Background on Children Born to Unmarried Parents Historically, children born to unmarried parents were labeled “bastards” or “illegitimate,” and had fewer rights and opportunities than children born to married people. Illegitimate children are, “persons who are begotten and born out of wedlock”. Civil and Canon law legitimized the child by the subsequent marriage of the parents. Protecting children from ‘illegitimacy,” remains a strong justification for the legal presumption that any child born to a married couple is the child of the husband and a legitimate product of the marriage. Defining the Child – Parent Relationship, cont. Surnames Traditionally, children born to married couples are given the father’s surname. At common law, a child born to unmarried parents was considered the child of no one and had no surname at birth. The law began to give nonmarital children a right to inherit from their mothers and gave their mothers custody, these children began to receive their mothers surnames, which gradually moved from custom to law (text p. 129) Gubernat v. Deremer – the court held that the surname selected by the custodial parent, that is the parent that makes the decisions in the best interest of the child’s life, is able to give the child their surname. Note: This rule applies for children under the age of 6 years Defining the Child – Parent Relationship, cont. Huffman v. Fisher – the court held that for children between the ages of 6-14, the court should make a determination concerning the child’s ability to state a preference which would keep in line with the best interest of the child Factors to consider The length of time that the child has used his or her current name The name by which the child has customarily been called Whether a name change will cause insecurity or identity confusion The motivation of the parents in changing the child’s name Any embarrassment, discomfort, or inconvenience that may result if the child’s surname differs from that of a custodial parent Defining the Child – Parent Relationship, cont. Unmarried Parents: The Contemporary Context Constitutional and Statutory Reform Levy v. Louisiana – The Supreme Court held for the first time that children born to unmarried parents are “persons” within the Fourteenth Amendment’s Equal Protection Clause. The Uniform Parentage Act (UPA) Section 202 states, “a child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” Establishing Paternity The PRWORA [Personal Responsibility and Work Opportunity Reconciliation Act of 1966] resulted in three developments for the establishment of paternity A change in social perspective During the 1980’s, there was a growing focus on poverty and other societal problems often associated with single parenth ...

1. Defining the Child – Parent Relationship
Establishing Paternity and Maternity
The Importance of Marriage – Historical Background on
Children Born to Unmarried Parents
Historically, children born to unmarried parents were labeled
“bastards” or “illegitimate,” and had fewer rights and
opportunities than children born to married people.
Illegitimate children are, “persons who are begotten and born
out of wedlock”.
Civil and Canon law legitimized the child by the subsequent
marriage of the parents.
Protecting children from ‘illegitimacy,” remains a strong
justification for the legal presumption that any child born to a
married couple is the child of the husband and a legitimate
product of the marriage.
Defining the Child – Parent Relationship, cont.
Surnames
Traditionally, children born to married couples are given the
father’s surname.
At common law, a child born to unmarried parents was
considered the child of no one and had no surname at birth.

2. The law began to give nonmarital children a right to inherit
from their mothers and gave their mothers custody, these
children began to receive their mothers surnames, which
gradually moved from custom to law (text p. 129)
Gubernat v. Deremer – the court held that the surname selected
by the custodial parent, that is the parent that makes the
decisions in the best interest of the child’s life, is able to give
the child their surname. Note: This rule applies for children
under the age of 6 years
Defining the Child – Parent Relationship, cont.
Huffman v. Fisher – the court held that for children between the
ages of 6-14, the court should make a determination concerning
the child’s ability to state a preference which would keep in line
with the best interest of the child
Factors to consider
The length of time that the child has used his or her current
name
The name by which the child has customarily been called
Whether a name change will cause insecurity or identity
confusion
The motivation of the parents in changing the child’s name
Any embarrassment, discomfort, or inconvenience that may
result if the child’s surname differs from that of a custodial
parent
Defining the Child – Parent Relationship, cont.
Unmarried Parents: The Contemporary Context

3. Constitutional and Statutory Reform
Levy v. Louisiana – The Supreme Court held for the first time
that children born to unmarried parents are “persons” within the
Fourteenth Amendment’s Equal Protection Clause.
The Uniform Parentage Act (UPA) Section 202 states, “a child
born to parents who are not married to each other has the same
rights under the law as a child born to parents who are married
to each other.”
Establishing Paternity
The PRWORA [Personal Responsibility and Work Opportunity
Reconciliation Act of 1966] resulted in three developments for
the establishment of paternity
A change in social perspective
During the 1980’s, there was a growing focus on poverty and
other societal problems often associated with single
parenthood.
In-Hospital Paternity Establishment
80% of unmarried fathers was in the hospital at birth took an
active role in the beginning of the life of the child
Advancement in genetic testing
Advancement in scientific testing for paternity, especially the
use of DNA made the identification of fathers a near certainty.
(text p. 140)

4. Establishing Paternity, cont.
PRWORA compelled changes in state laws and procedures in
the area of child support enforcement through mandates
imposed on states
It expands in-hospital paternity establishment programs
States are required to provide that a voluntary acknowledgement
of paternity is considered legally binding
Both parents must be given notice of the legal ramifications of
paternity acknowledgement
The name of the father can be included on the birth record only
if both parents signed a voluntary paternity acknowledgement
Establishing Paternity, cont.
Changes in the Paternity Establishment Process
Upfront Genetic testing – In order to get upfront genetic testing:
First, the state must provide authority for the state child support
agency to order genetic tests “without the necessity of obtaining
an order from any judicial or administrative tribunal”
States must have procedures which require parties in contested
paternity proceedings to submit a genetic test if the request is
supported by a sworn statement setting forth facts establishing a
reasonable possibility of the requisite sexual contact between
the parties.
State agencies must also pay the costs of the tests

5. Florida Statute Chapter 742 Determination of Parentage
Pursuant to Fla.. Stat. 742.011 (2005), any woman or any man
who has reason to believe that he or she is the parent of a child
may bring proceedings to establish paternity in the circuit court.
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 a child of the husband
and wife as though bron within wedlock. Fla. Stat. 742.091
(2005)
Scientific testing is are generally acceptable to determine
paternity and shall be ordered by the court where appropriate.
Fla. Stat. 742.12 (2005)
D.H.R.S. v. Privette (617 So.2d 305)
In the State of Florida, a child born during the course of a valid
marriage has the right and presumption of being treated as a
product of the marriage. But, what happens when the husband
(legal father) is separated from the wife and she becomes
pregnant and gives birth to a child that is not her husband’s
biological child?
The answer can be found in Privette. The State must comply
with the rules set forth in Privette to overcome the strong
presumption of paternity on behalf of the legal father.

6. Florida Statute Chapter 61 Dissolution of Marriage; Support and
Custody
Chapter 61 provides the statutory framework for the resolution
of child custody and visitation disputes in addition to the
mathematical formulation for calculating child support
obligations.
The substantive factors found in Fla. Stat. 61.13 are utilized for
resolution of custodial disputes even when those disputes arise
under the Fla. Stat. Chapter 742.
Chapter 61 is also applied for purposes of calculating child
support obligations that arise under other Chapters of the
Florida Statutes.
Florida Statute Chapter 61 Dissolution of Marriage; Support and
Custody
Pursuant to Chapter 61.13, shared parental responsibility is
presumptively in the child’s best interest unless the court finds
that shared parental responsibility would be detrimental to the
child.
Shared parental responsibility permits a parent (as a matter of
law) to participate in the major decision making effecting the
child. This concept is sometime referred to as “legal custody” or
the right to make legally binding decisions for the child.
Florida Statute Chapter 61 Dissolution of Marriage; Support and
Custody
Chapter 61 also authorizes an award of sole parental

7. responsibility when it would be detrimental to the child for a
parent to participate in the decision making process for some
specified reason.
Primary physical custody is where the child primarily resides;
where the child spends the majority of the overnights.
Visitation is also referred to as physical custody and it
incorporates the right to have the child in one’s physical
custody.
Florida Statute Chapter 61 Dissolution of Marriage; Support and
Custody
Courts must apply the statutory factors found in 61.13(3) in
order to resolve underlying custody and visitation disputes. This
laundry list of factors guides the court in search to determine
what is in the “child’s best interest”. Florida courts may order
that the child’s primary residence be shared between the parties
granting shared primary residential custody of the child. This
arrangement is most effective in cases where the parents have a
proven ability to communicate and where conflict between them
is minimal.
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
The court must have jurisdiction (judicial authority) to enter a
binding order on the subject of the litigation. For children, this
judicial authority is found in the UCCJEA. Conceptually, the
Act requires that each state should resolve custodial disputes
within the geographical territory where the dispute arose by
applying the law of that jurisdiction. This concept recognizes

8. and respects the sovereign right of each state to resolve disputes
that arise within it’s state boundaries.
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
“Home State” jurisdiction is the primary jurisdictional basis
under which a trial court could exercise jurisdiction pursuant to
the UCCJEA and it is defined as:
“the state in which a child lived with a parent or a
person acting as a parent for at least 6 consecutive months
immediately before the commencement of a child custody
proceeding.” For children under the age of 6 months of age, the
term means where the child has lived from birth. (see Fla. Stat.
61.514 (2005))
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
There are some exceptions to the 6 month residency requirement
but those exceptions are narrowly construed.
The UCCJEA has other jurisdictional protocols to address
situations that do not meet the home state rule.
Every complaint filed in court that involves a child must have
an accompanying UCCJEA affidavit attached to explain where
the child has lived prior to the initiation of the litigation.
Compliance with the UCCJEA is a mandatory perquisite for the
court to exercise jurisdiction.
Page 1 of 22

9. MODULE # 2 SUPPLEMENTAL READING ASSIGNMENT
Florida Statute Chapter 742 – Determination of Parentage
Page 2 of 22
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.
742.031 Hearings; court orders for support, hospital expenses,
and attorney's fee.--
(1) Hearings for the purpose of establishing or refuting the
allegations of the complaint and answer shall be held in the
chambers and may be restricted to persons, in addition to the
parties involved and their counsel, as the judge in his or her
discretion may direct. The court shall determine the issues of
paternity of the child and the ability of the parents to support
the child. Each party's social security number shall be recorded
in the file containing the adjudication of paternity. If the court
finds that the alleged father is the father of the child, it shall so
order. If appropriate, the court shall order the father to pay the
complainant, her guardian, or any other person assuming
responsibility for the child moneys sufficient to pay reasonable
attorney's fees, hospital or medical expenses, cost of
confinement, and any other expenses incident to the birth of the
child and to pay all costs of the proceeding. Bills for pregnancy,
childbirth, and scientific testing are admissible as evidence
without requiring third-party foundation testimony, and shall
constitute prima facie evidence of amounts incurred for such
services or for testing on behalf of the child. The court shall

10. order either or both parents owing a duty of support to the child
to pay support pursuant to s. 61.30. The court shall issue, upon
motion by a party, a temporary order requiring the provision of
child support pursuant to s. 61.30 pending an administrative or
judicial determination of parentage, if there is clear and
convincing evidence of paternity on the basis of genetic tests or
other evidence. The court may also make a determination as to
the parental responsibility and residential care and custody of
the minor children in accordance with chapter 61.
(2) If a judgment of paternity contains no explicit award of
custody, the establishment of a support obligation or of
visitation rights in one parent shall be considered a judgment
granting primary residential care and custody to the other parent
without prejudice. If a paternity judgment contains no such
provisions, custody shall be presumed to be with the mother.
(3) Pursuant to the federal Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, each party is required
to provide his or her social security number in accordance with
this section. Disclosure of social security numbers obtained
through this requirement shall be limited to the purpose of
administration of the Title IV-D program for child support
enforcement.
(4)(a) A court may, upon good cause shown and without a
showing of a substantial change of circumstances, modify,
vacate, or set aside a temporary support order before or upon
entering a final order in a proceeding.
(b) The modification of the temporary support order may be
retroactive to the date of the initial entry of the temporary
support order; to the date of filing of the initial petition for
dissolution of marriage, petition for support, petition
determining paternity, or supplemental petition for
modification; or to a date prescribed in s. 61.14(1)(a) or s.
61.30(11)(c) or (17), as applicable.
Page of

11. 742.07 Effect of adoption.--Upon the adoption of a child, for
whom support has been ordered, by some person other than the
father, the liability of the father for the support of the child
shall be terminated.
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.
Page 3 of 22
742.10 Establishment of paternity for children born out of
wedlock.-- (1) This chapter provides the primary jurisdiction
and procedures for the determination of paternity for children
born out of wedlock. When the establishment of paternity has
been raised and determined within an adjudicatory hearing
brought under the statutes governing inheritance, or dependency
under workers' compensation or similar compensation programs,
or when an affidavit acknowledging paternity or a stipulation of
paternity is executed by both parties and filed with the clerk of
the court, or when an affidavit, a notarized voluntary
acknowledgment of paternity, or a voluntary acknowledgment of
paternity that is witnessed by two individuals and signed under
penalty of perjury as provided for in s. 382.013 or s. 382.016 is
executed by both parties, or when paternity is adjudicated by
the Department of Revenue as provided in s. 409.256, such
adjudication, affidavit, or acknowledgment constitutes the
establishment of paternity for purposes of this chapter. If no

12. adjudicatory proceeding was held, a notarized voluntary
acknowledgment of paternity or voluntary acknowledgment of
paternity that is witnessed by two individuals and signed under
penalty of perjury as specified by s. 92.525(2) shall create a
rebuttable presumption, as defined by s. 90.304, of paternity
and is subject to the right of any signatory to rescind the
acknowledgment within 60 days after the date the
acknowledgment was signed or the date of an administrative or
judicial proceeding relating to the child, including a proceeding
to establish a support order, in which the signatory is a party,
whichever is earlier. Both parents must provide their social
security numbers on any acknowledgment of paternity, consent
affidavit, or stipulation of paternity. Except for affidavits under
seal pursuant to ss. 382.015 and 382.016, the Office of Vital
Statistics shall provide certified copies of affidavits to the Title
IV-D agency upon request.
(2) Pursuant to the federal Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, each party is required
to provide his or her social security number in accordance with
this section. Disclosure of social security numbers obtained
through this requirement shall be limited to the purpose of
administration of the Title IV-D program for child support
enforcement.
(3) The department shall adopt rules which establish the
information which must be provided to an individual prior to
execution of an affidavit or voluntary acknowledgment of
paternity. The information shall explain the alternatives to, the
legal consequences of, and the rights, including, if one parent is
a minor, any rights afforded due to minority status, and
responsibilities that arise from acknowledging paternity.
(4) After the 60-day period referred to in subsection (1), a
signed voluntary acknowledgment of paternity shall constitute
an establishment of paternity and may be challenged in court
only on the basis of fraud, duress, or material mistake of fact,
with the burden of proof upon the challenger, and under which

13. the legal responsibilities, including child support obligations of
any signatory arising from the acknowledgment may not be
suspended during the challenge, except upon a finding of good
cause by the court.
(5) Judicial or administrative proceedings are not required or
permitted to ratify an unchallenged acknowledgment of
paternity.
742.108 Criminal penalties for false statements of paternity.--
Notwithstanding any other provision of law, any person who
knowingly and willfully provides false information to the
sheriff's office, other law enforcement agency, or governmental
agency, or under oath regarding the paternity of a child in
conjunction with an application for, or the receipt of, public
assistance for a dependent child commits a misdemeanor of the
second degree, punishable as provided in s.
Page of
775.082 or s. 775.083, in addition to remaining subject to any
other civil or criminal penalties for perjury or making false
statements which are applicable under other provisions of law.
Page 4 of 22
742.11 Presumed status of child conceived by means of
artificial or in vitro insemination or donated eggs or
preembryos.-- (1) Except in the case of gestational surrogacy,
any child born within wedlock who has been conceived by the
means of artificial or in vitro insemination is irrebuttably
presumed to be the child of the husband and wife, provided that
both husband and wife have consented in writing to the
artificial or in vitro insemination.

14. (2) Except in the case of gestational surrogacy, any child born
within wedlock who has been conceived by means of donated
eggs or preembryos shall be irrebuttably presumed to be the
child of the recipient gestating woman and her husband,
provided that both parties have consented in writing to the use
of donated eggs or preembryos.
Page 6 of 22
742.12 Scientific testing to determine paternity.-- (1) In any
proceeding to establish paternity, the court on its own motion
may require the child, mother, and alleged fathers to submit to
scientific tests that are generally acceptable within the scientific
community to show a probability of paternity. The court shall
direct that the tests be conducted by a qualified technical
laboratory.
(2) In any proceeding to establish paternity, the court may, upon
request of a party providing a sworn statement or written
declaration as provided by s. 92.525(2) alleging paternity and
setting forth facts establishing a reasonable possibility of the
requisite sexual contact between the parties or providing a
sworn statement or written declaration denying paternity and
setting forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties, require the
child, mother, and alleged fathers to submit to scientific tests
that are generally acceptable within the scientific community to
show a probability of paternity. The court shall direct that the
tests be conducted by a qualified technical laboratory.
(3) The test results, together with the opinions and conclusions
of the test laboratory, shall be filed with the court. Any
objection to the test results must be made in writing and must
be filed with the court at least 10 days prior to the hearing. If
no objection is filed, the test results shall be admitted into
evidence without the need for predicate to be laid or third-party

15. foundation testimony to be presented. Nothing in this paragraph
prohibits a party from calling an outside expert witness to refute
or support the testing procedure or results, or the mathematical
theory on which they are based. Upon the entry of the order for
scientific testing, the court must inform each person to be tested
of the procedure and requirements for objecting to the test
results and of the consequences of the failure to object.
(4) Test results are admissible in evidence and should be
weighed along with other evidence of the paternity of the
alleged father unless the statistical probability of paternity
equals or exceeds 95 percent. A statistical probability of
paternity of 95 percent or more creates a rebuttable
presumption, as defined by s. 90.304, that the alleged father is
the biological father of the child. If a party fails to rebut the
presumption of paternity which arose from the statistical
probability of paternity of 95 percent or more, the court may
enter a summary judgment of paternity. If the test results show
the alleged father cannot be the biological father, the case shall
be dismissed with prejudice.
(5) Subject to the limitations in subsection (3), if the test results
or the expert analysis of the inherited characteristics is
disputed, the court, upon reasonable request of a party, shall
order that an additional test be made by the same laboratory or
an independent laboratory at the expense of the party requesting
additional testing.
(6) Verified documentation of the chain of custody of the blood
or other specimens is competent evidence to establish the chain
of custody.
(7) The fees and costs for scientific tests shall be paid by the
parties in proportions and at times determined by the court
unless the parties reach a stipulated agreement which is adopted
by the court.

16. Florida Statute Chapter 61 Dissolution of Marriage; Support;
Custody
Part I:General Provisions (ss.61.001-61.45)

17. Page 11 of 22
61.121 Rotating custody.--The court may order rotating custody
if the court finds that rotating custody will be in the best
interest of the child.
61.13 Custody and support of children; visitation rights; power
of court in making orders.-- (1)(a) In a proceeding under this
chapter, the court may at any time order either or both parents
who owe a duty of support to a child to pay support in
accordance with the guidelines in s. 61.30. The court initially
entering an order requiring one or both parents to make child
support payments shall have continuing jurisdiction after the
entry of the initial order to modify the amount and terms and
conditions of the child support payments when the modification
is found necessary by the court in the best interests of the child,
when the child reaches majority, or when there is a substanti al
change in the circumstances of the parties. The court initially
entering a child support order shall also have continuing
jurisdiction to require the obligee to report to the court on terms
prescribed by the court regarding the disposition of the child
support payments.
(b) Each order for support shall contain a provision for health
care coverage for the minor child when the coverage is
reasonably available. Coverage is reasonably available if either
the obligor or obligee has access at a reasonable rate to a group
health plan. The court may require the obligor either to provide
health care coverage or to reimburse the obligee for the cost of
health care coverage for the minor child when coverage is
provided by the obligee. In either event, the court shall
apportion the cost of coverage, and any noncovered medical,
dental, and prescription medication expenses of the child, to
both parties by adding the cost to the basic obligation
determined pursuant to s. 61.30(6). The court may order that

18. payment of uncovered medical, dental, and prescription
medication expenses of the minor child be made directly to the
obligee on a percentage basis.
(c) To the extent necessary to protect an award of child support,
the court may order the obligor to purchase or maintain a life
insurance policy or a bond, or to otherwise secure the child
support award with any other assets which may be suitable for
that purpose.
3. If both parties request and the court finds that it is in the best
interest of the child, support payments need not be directed
through the depository. The order of support shall provide, or
shall be deemed to provide, that either party may subsequently
apply to the depository to require direction of the payments
through the depository. The court shall provide a copy of the
order to the depository.
(2)(a) The court shall have jurisdiction to determine custody,
notwithstanding that the child is not physically present in this
state at the time of filing any proceeding under this chapter, if it
appears to the court that the child was removed from this state
for the primary purpose of removing the child from the
jurisdiction of the court in an attempt to avoid a determination
or modification of custody.
(b)1. The court shall determine all matters relating to custody of
each minor child of the parties in accordance with the best
interests of the child and in accordance with the Uniform Child
Custody Jurisdiction and Enforcement Act. It is the public
policy of this state to assure that each minor child has frequent
and continuing contact with both parents after the parents
separate or the marriage of the parties is dissolved and to
encourage parents to share the rights and responsibilities, and
joys, of childrearing. After considering all relevant facts, the
father of the child shall be given the same consideration as the
mother in determining the primary residence of a child
irrespective of the age or sex of the child.
2. The court shall order that the parental responsibility for a
minor child be shared by both parents unless the court finds that

19. shared parental responsibility would be detrimental to the child.
Evidence that a parent has been convicted of a felony of the
third degree or higher involving domestic violence, as defined
in s. 741.28 and chapter 775, or meets the criteria of s.
39.806(1)(d), creates a rebuttable presumption of detriment to
the child. If the presumption is not rebutted, shared parental
responsibility, including visitation, residence of the child, and
decisions made regarding the child, may not be granted to the
convicted parent. However, the convicted parent is not relieved
of any obligation to provide financial support. If the court
determines that shared parental responsibility would be
detrimental to the child, it may order sole parental
responsibility and make such arrangements for visitation as will
best protect the child or abused spouse from further harm.
Whether or not there is a conviction of any offense of domestic
violence or child abuse or the existence of an injunction for
protection against domestic violence, the court shall consider
evidence of domestic violence or child abuse as evidence of
detriment to the child.
a. In ordering shared parental responsibility, the court may
consider the expressed desires of the parents and may grant to
one party the ultimate responsibility over specific aspects of the
child's welfare or may divide those responsibilities between the
parties based on the best interests of the child. Areas of
responsibility may include primary residence, education,
medical and dental care, and any other responsibilities that the
court finds unique to a particular family.
b. The court shall order "sole parental responsibility, with or
without visitation rights, to the other parent when it is in the
best interests of" the minor child.
3. Access to records and information pertaining to a minor
child, including, but not limited to, medical, dental, and school
records, may not be denied to a parent because the parent is not
the child's primary residential parent. Full rights under this
subparagraph apply to either parent unless a court order
specifically revokes these rights, including any restrictions on

20. these rights as provided in a domestic violence injunction. A
parent having rights under this subparagraph has the same rights
upon request as to form, substance, and manner of access as are
available to the other parent of a child, including, without
limitation, the right to in-person communication with medical,
dental, and education providers.
(c) The circuit court in the county in which either parent and the
child reside or the circuit court in which the original award of
custody was entered have jurisdiction to modify an award of
child custody. The court may change the venue in accordance
with s. 47.122.
(d) No presumption shall arise in favor of or against a request to
relocate when a primary residential parent seeks to move the
child and the move will materially affect the current schedule of
contact and access with the secondary residential parent. In
making a determination as to whether the primary residential
parent may relocate with a child, the court must consider the
following factors:
1. Whether the move would be likely to improve the general
quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and
exercised.
3. Whether the primary residential parent, once out of the
jurisdiction, will be likely to comply with any substitute
visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a
continuing meaningful relationship between the child and the
secondary residential parent.
5. Whether the cost of transportation is financially affordable
by one or both parties.
6. Whether the move is in the best interests of the child.
(3) For purposes of shared parental responsibility and primary
residence, the best interests of the child shall include an
evaluation of all factors affecting the welfare and interests of
the child, including, but not limited to:
(a) The parent who is more likely to allow the child frequent

21. and continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing
between the parents and the child.
(c) The capacity and disposition of the parents to provide the
child with food, clothing, medical care or other remedial care
recognized and permitted under the laws of this state in lieu of
medical care, and other material needs.
(d) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity.
(e) The permanence, as a family unit, of the existing or
proposed custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and communi ty record of the child.
(i) The reasonable preference of the child, if the court deems
the child to be of sufficient intelligence, understanding, and
experience to express a preference.
(j) The willingness and ability of each parent to facilitate and
encourage a close and continuing parent-child relationship
between the child and the other parent.
(k) Evidence that any party has knowingly provided false
information to the court regarding a domestic violence
proceeding pursuant to s. 741.30.
(l) Evidence of domestic violence or child abuse.
(m) Any other fact considered by the court to be relevant.
(4)(a) When a noncustodial parent who is ordered to pay child
support or alimony and who is awarded visitation rights fails to
pay child support or alimony, the custodial parent shall not
refuse to honor the noncustodial parent's visitation rights.
(b) When a custodial parent refuses to honor a noncustodial
parent's visitation rights, the noncustodial parent shall not fail
to pay any ordered child support or alimony.
(c) When a custodial parent refuses to honor a noncustodial
parent's or grandparent's visitation rights without proper cause,
the court shall, after calculating the amount of visitation

22. improperly denied, award the noncustodial parent or
grandparent a sufficient amount of extra visitation to
compensate the noncustodial parent or grandparent, which
visitation shall be ordered as expeditiously as possible in a
manner consistent with the best interests of the child and
scheduled in a manner that is convenient for the person
deprived of visitation. In ordering any makeup visitation, the
court shall schedule such visitation in a manner that is
consistent with the best interests of the child or children and
that is convenient for the noncustodial parent or grandparent. In
addition, the court:
1. May order the custodial parent to pay reasonable court costs
and attorney's fees incurred by the noncustodial parent or
grandparent to enforce their visitation rights or make up
improperly denied visitation;
2. May order the custodial parent to attend the parenting course
approved by the judicial circuit;
3. May order the custodial parent to do community service if the
order will not interfere with the welfare of the child;
4. May order the custodial parent to have the financial burden
of promoting frequent and continuing contact when the
custodial parent and child reside further than 60 miles from the
noncustodial parent;
5. May award custody, rotating custody, or primary residence to
the noncustodial parent, upon the request of the noncustodial
parent, if the award is in the best interests of the child; or
6. May impose any other reasonable sanction as a result of
noncompliance.
(d) A person who violates this subsection may be punished by
contempt of court or other remedies as the court deems
appropriate.
(5) The court may make specific orders for the care and custody
of the minor child as from the circumstances of the parties and
the nature of the case is equitable and provide for child support
in accordance with the guidelines in s. 61.30. An award of
shared parental responsibility of a minor child does not preclude

23. the court from entering an order for child support of the child.
(6) In any proceeding under this section, the court may not deny
shared parental responsibility, custody, or visitation rights to a
parent or grandparent solely because that parent or grandparent
is or is believed to be infected with human immunodeficiency
virus; but the court may condition such rights upon the parent's
or grandparent's agreement to observe measures approved by the
Centers for Disease Control and Prevention of the United States
Public Health Service or by the Department of Health for
preventing the spread of human immunodeficiency virus to the
child.
(7) If the court orders that parental responsibility, including
visitation, be shared by both parents, the court may not deny the
noncustodial parent overnight contact and access to or visitation
with the child solely because of the age or sex of the child.
(8)(a) Beginning July 1, 1997, each party to any paternity or
support proceeding is required to file with the tribunal as
defined in s. 88.1011(22) and State Case Registry upon entry of
an order, and to update as appropriate, information on location
and identity of the party, including social security number,
residential and mailing addresses, telephone number, driver's
license number, and name, address, and telephone number of
employer. Beginning October 1, 1998, each party to any
paternity or child support proceeding in a non-Title IV-D case
shall meet the above requirements for updating the tribunal and
State Case Registry.
(b) Pursuant to the federal Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, each party is required
to provide his or her social security number in accordance with
this section. Disclosure of social security numbers obtained
through this requirement shall be limited to the purpose of
administration of the Title IV-D program for child support
enforcement.
(c) Beginning July 1, 1997, in any subsequent Title IV-D child
support enforcement action between the parties, upon sufficient
showing that diligent effort has been made to ascertain the

24. location of such a party, the court of competent jurisdiction
shall deem state due process requirements for notice and service
of process to be met with respect to the party, upon delivery of
written notice to the most recent residential or employer address
filed with the tribunal and State Case Registry pursuant to
paragraph (a). Beginning October 1, 1998, in any subsequent
non-Title IV-D child support enforcement action between the
parties, the same requirements for service shall apply.
(9) At the time an order for child support is entered, each party
is required to provide his or her social security number and date
of birth to the court, as well as the name, date of birth, and
social security number of each minor child that is the subject of
such child support order. Pursuant to the federal Personal
Responsibility and Work Opportunity Reconciliation Act of
1996, each party is required to provide his or her social security
number in accordance with this section. All social security
numbers required by this section shall be provided by the
parties and maintained by the depository as a separate
attachment in the file. Disclosure of social security numbers
obtained through this requirement shall be limited to the
purpose of administration of the Title IV-D program for child
support enforcement.
Page 12 of 22
61.20 Social investigation and recommendations when child
custody is in issue.-- (1) In any action where the custody of a
minor child is in issue, the court may order a social
investigation and study concerning all pertinent details relating
to the child and each parent when such an investigation has not
been done and the study therefrom provided to the court by the
parties or when the court determines that the investigation and
study that have been done are insufficient. The agency, staff, or
person conducting the investigation and study ordered by the
court pursuant to this section shall furnish the court and all

25. parties of record in the proceeding a written study containing
recommendations, including a written statement of facts found
in the social investigation on which the recommenda tions are
based. The court may consider the information contained in the
study in making a decision on the child's custody and the
technical rules of evidence do not exclude the study from
consideration.
(2) A social investigation and study, when ordered by the court,
shall be conducted by qualified staff of the court; a child-
placing agency licensed pursuant to s. 409.175; a psychologist
licensed pursuant to chapter 490; or a clinical social worker,
marriage and family therapist, or mental health counselor
licensed pursuant to chapter 491. If a certification of indigence
based on an affidavit filed with the court pursuant to s. 57.081
is provided by an adult party to the proceeding and the court
does not have qualified staff to perform the investigation and
study, the court may request that the Department of Children
and Family Services conduct the investigation and study.
(3) Except as to persons who obtain certification of indigence as
specified in subsection (2), for whom no costs shall be incurred,
the adult parties involved in a child custody proceeding wherein
the court has ordered a social investigation and study performed
shall be responsible for the payment of the costs of such
investigation and study. Upon submission of the study to the
court, the agency, staff, or person performing the study shall
include a bill for services, which shall be taxed and ordered
paid as costs in the proceeding.
Part II: Uniform Child Custody Jurisdiction and Enforcement
Act (ss.61.501-61.542)
Page 13 of
61.502 Purposes of part; construction of provisions.--The
general purposes of this part are to: (1) Avoid jurisdictional

26. competition and conflict with courts of other states in matters of
child custody which have in the past resulted in the shifting of
children from state to state with harmful effects on their well-
being.
(2) Promote cooperation with the courts of other states to the
end that a custody decree is rendered in the state that can best
decide the case in the interest of the child.
(3) Discourage the use of the interstate system for continuing
controversies over child custody.
(4) Deter abductions.
(5) Avoid relitigating the custody decisions of other states in
this state.
(6) Facilitate the enforcement of custody decrees of other states.
(7) Promote and expand the exchange of information and other
forms of mutual assistance between the courts of this state and
those of other states concerned with the same child.
(8) Make uniform the law with respect to the subject of this part
among the states enacting it.
Page 14 of 22
61.503 Definitions.--As used in this part, the term: (1)
"Abandoned" means left without provision for reasonable and
necessary care or supervision.
(2) "Child" means an individual who has not attained 18 years
of age.
(3) "Child custody determination" means a judgment, decree, or
other order of a court providing for the legal custody, physical
custody, residential care, or visitation with respect to a child.
The term includes a permanent, temporary, initial, and
modification order. The term does not include an order relating
to child support or other monetary obligation of an individual.
(4) "Child custody proceeding" means a proceeding in which
legal custody, physical custody, residential care, or visitation
with respect to a child is an issue. The term includes a

27. proceeding for divorce, separation, neglect, abuse, dependency,
guardianship, paternity, termination of parental rights, and
protection from domestic violence, in which the issue may
appear. The term does not include a proceeding involving
juvenile delinquency, contractual emancipation, or enforcement
under ss. 61.524-61.540.
(5) "Commencement" means the filing of the first pleading in a
proceeding.
(6) "Court" means an entity authorized under the laws of a state
to establish, enforce, or modify a child custody determination.
(7) "Home state" means the state in which a child lived with a
parent or a person acting as a parent for at least 6 consecutive
months immediately before the commencement of a child
custody proceeding. In the case of a child younger than 6
months of age, the term means the state in which the child lived
from birth with any of the persons mentioned. A period of
temporary absence of any of the mentioned persons is part of
the period.
(8) "Initial determination" means the first child custody
determination concerning a particular child.
(9) "Issuing court" means the court that makes a child custody
determination for which enforcement is sought under this part.
(10) "Issuing state" means the state in which a child custody
determination is made.
(11) "Modification" means a child custody determination that
changes, replaces, supersedes, or is otherwise made after a
previous determination concerning the same child, regardless of
whether it is made by the court that made the previous
determination.
(12) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, or government; governmental subdivision,
agency, instrumentality, or public corporation; or any other
legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a
parent, who:

28. (a) Has physical custody of the child or has had physical
custody for a period of 6 consecutive months, including any
temporary absence, within 1 year immediately before the
commencement of a child custody proceeding; and
(b) Has been awarded a child-custody determination by a court
or claims a right to a child-custody determination under the
laws of this state.
(14) "Physical custody" means the physical care and supervision
of a child.
(15) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States.
(16) "Tribe" means an Indian tribe, or band, or Alaskan Native
village that is recognized by federal law or formally
acknowledged by a state.
(17) "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
Page of
61.514 Initial child custody jurisdiction.-- (1) Except as
otherwise provided in s. 61.517, a court of this state has
jurisdiction to make an initial child custody determination only
if:
(a) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the
child within 6 months before the commencement of the
proceeding and the child is absent from this state but a parent or
person acting as a parent continues to live in this state;
Page of
(b) A court of another state does not have jurisdiction under
paragraph (a), or a court of the home state of the child has
declined to exercise jurisdiction on the grounds that this state is

29. the more appropriate forum under s. 61.520 or s. 61.521, and:
Page 15 of 22
1. The child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence;
and
2. Substantial evidence is available in this state concerning the
child's care, protection, training, and personal relationships;
(c) All courts having jurisdiction under paragraph (a) or
paragraph (b) have declined to exercise jurisdiction on the
grounds that a court of this state is the more appropriate forum
to determine the custody of the child under s. 61.520 or s.
61.521; or
(d) No court of any other state would have jurisdiction under
the criteria specified in paragraph (a), paragraph (b) , or
paragraph (c).
(2) Subsection (1) is the exclusive jurisdictional basis for
making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party
or a child is not necessary or sufficient to make a child custody
determination.
DEPARTMENT OF HEALTH AND REHABILITATIVE
SERVICES, etc., Petitioner, vs. WILLIAM PRIVETTE,
Respondent.
No. 78,837
SUPREME COURT OF FLORIDA

30. 617 So. 2d 305; 1993 Fla. LEXIS 601; 18 Fla. L. Weekly S 226
April 8, 1993, Decided
Page 21 of 22
PRIOR HISTORY: [**1] Application for Review of the
Decision of the District Court of Appeal - Direct Conflict of
Decisions. Second District - Case No. 91-00536. (Charlotte
County)
LexisNexis(R) Headnotes
COUNSEL: Joseph R. Boyd and William H. Branch of Boyd &
Branch, P.A., Tallahassee, Florida; and Chriss Walker,
Department of Health and Rehabilitative Services, Tallahassee,
Florida, for Petitioner.
Daniel A. David, Sarasota, Florida, for Respondent.
JUDGES: KOGAN, BARKETT, OVERTON, McDONALD,
SHAW, HARDING, GRIMES,
OPINIONBY: KOGAN
OPINION: [*306] KOGAN, J.
We have for review Privette v. State Department of Health &
Rehabilitative Services, 585 So. 2d 364 (Fla. 2d DCA 1991),
based on express and direct conflict with Pitcairn v. Vowell,
580 So. 2d 219 (Fla. 1st DCA 1991). We have jurisdiction. Art.
V, § 3(b)(3), Fla. Const.
The Florida Department of Health & Rehabilitative Services
(HRS) pursued this action against William Privette on behalf of

31. a woman who alleged that Privette was the father of her
daughter. n1 By sworn complaint, the woman alleged that she
was unmarried at the time the child was born, [*307] that she
had had sexual relations [**2] with Privette at the time of the
child's conception, and that he was the child's natural father.
n1 The state agency essentially is seeking remuneration from
the putative natural father for public funds spent on behalf of
the child.
In actuality, the woman was married to another man at the time
of her daughter's birth, although no evidence was developed
refuting her contention of marital infidelity during conception.
Moreover, when obtaining her daughter's birth certificate, the
woman had stated that her husband was the father. The
certificate so notes.
Based solely on the complaint, the trial court ordered Privette to
undergo a human leukocyte antigen test, a medical procedure
that can determine paternity with a high degree of certainty.
Privette then petitioned the Second District for common law
writ of certiorari. The district court granted the petition,
reasoning that Privette's privacy rights and the best interests of
the child should have been weighed by the trial court. Privette,
585 So. 2d at 366. [**3]
It is easy to misperceive cases of this type as concerning little
more than men allegedly trying to evade parental obligations.
This is a temptation the courts must avoid. In actuality, this is a
case about impugning the legitimacy of a child for the sake of
money allegedly owed to the State of Florida. And it also is a
case about impugning the parental rights of the child's present
legal father for the same reason. n2 Sometimes there may be
good grounds for doing so. But as a matter of public policy, we
cannot agree that the State can risk plunging children into the
stigma of illegitimacy and undermining parental rights for no
better reason than appears on the present record. A good deal
more is required.

32. n2 Of course the mere fact of a blood test establishing the
putative natural father's paternity does not in itself result in a
legal declaration of illegitimacy or a legal termination of the
legal father's parental rights.
We must start from the premise that the presumption of
legitimacy is based on the policy of [**4] protecting the
welfare of the child, i.e., the policy of advancing the best
interests of the child. Sacks v. Sacks, 267 So. 2d 73 (Fla.
1972). This policy is a guiding principle that must inform every
action of the courts in this sensitive legal area.
The present suit was for all practical purposes originated by
HRS based on a standard complaint form consisting almost
entirely of preprinted fill-in-the-blank boilerplate language
signed by the mother. The complaint is not even accurate,
because it alleges that the child was "born out of wedlock."
There is no indication the mother had any other role in the
proceedings or showed any interest in them whatsoever. All she
did was sign her name to a document, apparently at HRS's
insistence.
Essentially this case has been litigated as though it is about
nothing more than repayment of money HRS expended on behalf
of the child.
At the trial bench, the parties stipulated to a few sketchy facts,
made a few arguments, and a blood test was ordered for reasons
the trial court did not make clear. We can only assume the trial
court agreed that the test was justified based entirely on HRS's
financial interests. There [**5] was absolutely no consideration
of the child's best interests and no mention of the child's legal
father. For all we know, no attempt was made to notify the legal
father (i.e., the one listed on the birth certificate) nor was he
given the chance to intervene, if he in fact is available and so
desires.
While we do not quarrel with HRS's legal authority to pursue
paternity cases, such authority does not take precedence over a

33. child's future interests, nor over the sanctity of legally
established family relationships about which we know next to
nothing on the present record. See Carlson v. State Dept. of
Health & Rehab. Servs., 378 So. 2d 868 (Fla. 2d DCA 1979).
Once children are born legitimate, they have a right to maintain
that status both factually and legally if doing so is in their best
interests. Art. I, § 9, Fla. Const. The child's legally recognized
father likewise has an unmistakable interest in maintaining the
relationship with his child unimpugned, Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); [*308]
In re D.B., 385 So. 2d 83 (Fla. 1980), [**6] such that his
opposition to the blood test and reasons for so objecting would
be relevant evidence in determining the child's best interests. n3
n3 For example, a legal father who is actively participating in
the care and custody of his legal child would be entitled to
object to the test on grounds that he is satisfied with his status
and does not want the child's legitimacy questioned in any way.
See Brenda J. Runner, Protecting a Husband's Parental Rights
When His Wife Disputes the Presumption of Legitimacy, 28 J.
Fam. L. 115 (1989-90). In appropriate cases, parents can be
equitably estopped from disputing paternity where they
previously have acknowledged the legal father's paternity, e.g.
Wade v. Wade, 536 So. 2d 1158 (Fla. 1st DCA 1988); Boyles v.
Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (N.Y. App. 1983), or
the legal father's paternity could be ruled unassailable based on
other equitable principles where the legal father has established
a mutually rewarding relationship with the child, he desires to
continue exercising parental rights, he is supporting the child to
the best of his ability, and maintaining the existing relationship
is in the child's best interests. See Marshek v. Marshek, 599 So.
2d 175 (Fla. 1st DCA 1992); Atkinson v. Atkinson, 160 Mich.
App. 601, 408 N.W.2d 516 (Mich. App. 1987). Obviously, the
same concerns would not apply where the legal father has
abandoned the child or otherwise has acted contrary to the
child's best interests.

34. [**7]
Thus, before a blood test can be ordered in cases of this type,
the trial court is required to hear argument from the parties,
including the legal father if he wishes to appear n4 and a
guardian ad litem appointed to represent the child. n5 See State
in re J.W.F., 799 P.2d 710, 713 (Utah 1990). HRS also may be
an appropriate party in cases involving the expenditure of
public monies on behalf of the child.
n4 The legal father must be given notice of the hearing either
actually if he is available or constructively if otherwise; and he
must be heard if he wishes to argue personally or through
counsel.
n5 The child as represented by the guardian ad litem is an
indispensable party, since the child's best interests are the
primary issue of the proceeding.
We essentially agree with the test adopted by the district court
below with a few refinements. The trial court hearing a petition
for a blood test is required: (a) to determine that the complaint
is apparently accurate factually, is brought [**8] in good faith,
and is likely to be supported by reliable evidence, n6 and (b) to
find that the child's best interests will be better served even if
the blood test later proves the child's factual illegitimacy. The
one seeking the test bears the burden of proving these elements
by clear and convincing evidence. See Smith v. Department of
Health & Rehabilitative Servs., 522 So. 2d 956 (Fla. 1st DCA
1988).
n6 In considering this factor, the trial court should take into
account inconsistent statements made by the mother.
Inconsistent statements about paternity may not always defeat a
complaint, but they certainly cast doubt on its good faith. On
the other hand, the complainant could overcome these doubts by
showing legitimate and believable reasons for the inconsistent

35. statements. As noted above, inconsistent statements made by the
mother could constitute an estoppel as to any claim she might
bring, in an appropriate case.
While this burden is substantially greater than would apply in
any [**9] other discovery context, we believe it is absolutely
mandated by the presumption of legitimacy and the policies on
which it rests. Court after court in the United States has held
that the presumption and its related policies are so weighty that
they can defeat even the claim of a man proven beyond all doubt
to be the biological father. E.g., Michael H. v. Gerald D., 491
U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989); John M. v.
Paula T., 524 Pa. 306, 571 A.2d 1380 (Pa.), cert. denied, 498
U.S. 850, 112 L. Ed. 2d 107, 111 S. Ct. 140 (1990); State in re
J.W.F., 799 P.2d 710 (Utah 1990); Monroe v. Monroe, 88 Md.
App. 132, 594 A.2d 577 (Md. App.), cert. granted, 599 A.2d 90
(Md. 1991); Foster v. Whitley, 564 So. 2d 990 (Ala. Civ. App.
1990); In re Marriage of Klebs, 196 Ill. App. 3d 472, 143 Ill.
Dec. 363, 554 N.E.2d 298 (Ill. App. 1990); In re Marriage of
Ross, 13 Kan. App. 2d 402, 772 P.2d 278 (Kan. App.), aff'd in
part & rev'd in part on other grounds, 245 Kan. 591, 783 P.2d
331 (Kan. 1989); [**10] Banta v. Banta, 782 P.2d 946 (Okla.
App. 1989); Atkinson v. Atkinson, 160 Mich. App. 601, 408
N.W.2d 516 (Mich. App. 1987); Nelson v. Nelson, 10 Ohio App.
3d 36, 460 N.E.2d 653 (Ohio App. 1983); State ex rel. H. v. P.,
90 A.D.2d 434, 457 N.Y.S.2d 488 (N.Y. App. Div. 1982); see In
re Marriage of A., 41 Ore. App. 679, 598 P.2d 1258 (Or. App.
1979).
[*309] The New York intermediate appellate court in H. v. P.
has stated that, while the presumption of legitimacy is
rebuttable, it will not fail unless common sense and reason are
outraged by applying it to the case at hand. H. v. P., 457
N.Y.S.2d at 491. We take this to mean that there must be a cl ear
and compelling reason based primarily on the child's best
interests to overcome the presumption of legitimacy even after
the legal father is proven not to be the biological father. This is

36. at least the equivalent of the burden of proof that would exist in
proceedings to terminate the legal father's parental rights. n7
See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982). [**11] Thus, if a test shows that
Respondent is the child's biological father, this fact without
more does not constitute grounds to grant a paternity petition.
n7 We essentially are dealing with a species of termination
proceeding when the petition will have the effect of vesting
parental rights in the putative natural father and removing
parental rights from the legal father. We do not see how a court
constitutionally could apply a standard less than that recognized
in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.
2d 599 (1982), and other applicable case law where this is true.
This conclusion is especially compelling in light of the fact that
we must establish a neutral rule applicable to all cases of this
type. While there may be some cases where the child has had
little contact with the legal father, other cases will be quite the
contrary. It is conceivable that a man who has established a
loving, caring relationship of some years' duration [**12] with
his legal child later will prove not to be the biological father.
Where this is so, it seldom will be in the children's best
interests to wrench them away from their legal fathers and
judicially declare that they now must regard strangers as their
fathers. The law does not require such cruelty toward children.
All of this has important consequences in deciding whether a
blood test will be permitted in the first instance. If the record
shows there is no possibility the presumption of legitimacy can
be overcome by the blood test result (whatever it might be),
then the test will serve no purpose at all. If there is no purpose,
the petition should be denied. The child should not risk being
stigmatized without reason. Thus, in a real sense, the trial court
ordering the blood test must decide one of the ultimate issues:
whether the child's best interests will be served by being
declared illegitimate and having parental rights transferred to

37. the biological father.
As to the privacy issues, we agree that the State can have a
compelling interest in determining paternity in a proper case,
and that a blood test can be the least intrusive means of
advancing that interest. However, a compelling [**13] interest
does not come into existence in the abstract but must be based
on adequate factual allegations and a record establishing that
the test itself is in the child's best interests. Absent that, the
State's interest does not reach the threshold of being
"compelling": The blood test thus would be an improper
intrusion into the putative father's privacy, if he has properly
asserted this right. n8 Art. I, § 23, Fla. Const. However, any
such privacy claim is merely collateral to the overriding
concern in the case: the child's best interests.
n8 It may be true that the putative father lacks standing to assert
the child's presumption of legitimacy, but this means little. By
asserting a privacy interest the putative father necessarily puts
in issue the child's best interests, which substantially implicates
the presumption. If the child's best interests require maintaining
the presumption, then the presumption will prevail because the
State will lack a compelling interest justifying the blood test.
Art. I, § § 9, 23, Fla. Const.
[**14]
It may well be that, had certain facts been better developed
below and proper procedures followed, the blood test would
have been permissible here. We have few facts before us, but
the record at least suggests that the child has been abandoned by
the legal father and with its mother is living in poverty. If this
state of affairs was properly established, the stigma of
illegitimacy might well be outweighed by the child's need for
support, especially in [*310] light of any abandonment by the
legal father.
However, courts cannot guess at facts not properly developed,
nor can they grant blood tests merely because HRS wants

38. reimbursement. The failure here to appoint a guardian ad litem
for the child, the failure to use proper procedures, and the
inadequate record are each fatal to the trial court's order.
Accordingly, the trial court's order was improper, and the
decision reached by the district court below is approved. We
disapprove Pitcairn to the extent it is inconsistent with our
views here. This cause is remanded for further proceedings
consistent with our opinion.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW and
HARDING, JJ., concur.
GRIMES, J., dissents with an opinion.
DISSENTBY: [**15] GRIMES
DISSENT: GRIMES, J., dissenting.
It is ironic that a putative father is seeking to raise the
presumption of legitimacy to avoid having to pay support for
the child he is alleged to have fathered. As this Court stated in
another context:
This presumption . . . was created to protect the welfare of the
child. To now utilize this same presumption to deny this child
support is to destroy the very reason for its existence. The
welfare of the child demands that we recognize and honor not
the fiction, but the underlying purpose upon which the fiction
was created.
Sacks v. Sacks, 267 So. 2d 73, 76 (Fla. 1972).
The presumption of legitimacy is grounded upon public policy.
However, for purposes of discovery, the legislature has
established the public policy of Florida when it enacted section
742.12(1), Florida Statutes (1989), which provides in pertinent

39. part:
In any proceeding to establish paternity in law or in equity, the
court on its own motion may or upon request of a party shall
require the child, mother, and alleged fathers to submit to
Human Leukocyte Antigen tests or other scientific tests that are
generally acceptable within the scientific [**16] community to
show a probability of paternity.
Therefore, the putative father does not have standing in the
discovery phase of litigation to raise the presumption of
legitimacy in avoidance of the potential ordering of support.
Pitcairn v. Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991).
Because section 742.12(1) reflects the public policy of requiring
HLA testing in paternity actions, the only relevant argument
advanced by Privette is his constitutional claim to privacy.
However, it is well settled that where the intrusion is justified
and the means and procedures respect standards of
reasonableness, compulsory blood tests do not violate the
federal constitution. Schmerber v. California, 384 U.S. 757, 86
S. Ct. 1826, 16 L. Ed. 2d 908 (1966). To suggest that Florida's
constitutional right to privacy permits a putative father to r efuse
a blood test in order to avoid the possibility of having to
support his child offends ordinary principles of justice.
I do not dispute that at the final hearing the best interests of the
child should be of paramount concern, nor do I suggest that the
legal father [**17] should not have a say in this proceeding.
However, at this stage of the litigation where the sufficiency of
the complaint has not been challenged, the statute requires the
taking of the HLA test, and there are no constitutional
infirmities involved. I find it strange that in its effort to
promote its own view of public policy, the majority makes it
difficult to obtain the one test most likely to reveal the truth.
I respectfully dissent.

40. Page 22 of 22