DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

A.D.A., the mother and

M.J.L., the father,

Appellants,

v.

D.M.F., the husband,

Appellee.

Nos. 4D15-575 and 4D15-874

[June 8, 2016]

Consolidated appeals from the Circuit Court for the Fifteenth Judicial 

Circuit, Palm Beach County; Howard H. Harrison Senior Judge; L.T. Case 

Nos. 2010-DR-000186-XXXX-NB and 2013-DR-011152-XXXX-NB.

A.D.A., the mother, Royal Palm Beach, pro se.

M.J.L., the father, Royal Palm Beach, pro se.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach,

and J. Mark Maynor of Maynor & Associates, West Palm Beach for 

appellee.

GROSS, J.

This unusual case challenges the ability of the law to do the right thing. 

Under applicable Florida Statutes, we reverse the order of the circuit court 

denying a motion for paternity testing filed by a man who seeks to establish 

himself as the biological father of a child. To decide this case against the 

rights of the biological father would be to condone an attempt to sidestep 

the adoption statute.

There are three actors in this case―the child’s mother (A.D.A.), the 

mother’s husband (D.M.F.), and the mother’s former boyfriend (M.J.L.).

The mother and boyfriend had a romantic relationship that ended in 

late 2009, because she was “in trouble with the law.” On December 22, 

2009, the mother had a baby girl; she listed no father on the birth 

certificate. There was the “requisite sexual contact” between the mother 
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and the boyfriend to make it a “reasonable possibility” that the boyfriend 

was the baby’s father. § 742.12(2), Fla. Stat. (2014). Although not yet 

married to the mother, the husband was present at the child’s birth; the 

boyfriend also came to the hospital the day of the birth. 

In January 2010, the boyfriend filed a petition to determine paternity 

and related relief. The petition alleged that the boyfriend and the mother 

had an intimate relationship during a time frame consistent with his 

paternity, but that the mother would not let him see the child. The 

boyfriend’s affidavit stated he had no income and $50 in assets. 

On February 19, 2010, the boyfriend filed a claim of paternity with the 

Florida Putative Father Registry. According to section 63.054(1), Florida 

Statutes (2010), one legal effect of this filing was that it “preserve[d] the 

[boyfriend’s] right to notice and consent to an adoption” under Chapter 63, 

Florida Statutes.

The boyfriend filed a voluntary dismissal of his paternity action in July 

2010.

On July 29, 2010, the mother and husband filed an Acknowledgment 

of Paternity affidavit, listing the husband as the “natural father” of the 

child. As described in section 742.10(1), Florida Statutes (2010), this 

Acknowledgement was a “notarized voluntary acknowledgment of 

paternity.” In pertinent part, the “Acknowledgement by Natural Parents” 

stated:

Under penalties of perjury, WE HEREBY DECLARE that we 

have read the foregoing Acknowledgement of Paternity and 

that the facts stated in it are true, that is, that the mother was 

unwed at the time of birth, that no other man is listed on the 

birth record as father, that we are the natural parents of the 

child named above and that we fully understand our 

responsibilities and rights printed on the reverse side of this 

form . . . We understand that a person who knowingly makes 

a false declaration pursuant to s. 92.525(2) or 382.026(1), 

Florida Statutes is guilty of perjury by false written 

declaration, a felony of the third degree . . . .

In no uncertain terms, the reverse side of the form explained that by 

executing the acknowledgement, the parties to it were swearing that “they 

are the natural parents” of the child and that the father was “agreeing that 

[he was] the biological father of the child.” The form warned: “Do not sign 

the ACKNOWLEDGEMENT OF PATERNITY if you are not certain you are 

the child’s father.” The form cautioned that once the form was executed, 

“paternity can only be challenged by proving in court that [the father’s] 
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signature on the [Acknowledgement] was obtained through fraud, under 

duress, or that there was a material mistake in fact.”

The mother and husband were married on August 2, 2010. They

separated in July 2011, when the mother left the marital residence.

The husband filed for dissolution of marriage on October 24, 2013. His 

petition alleged that a minor child was “born of the marriage of the parties” 

and requested 50/50 timesharing and a parenting plan. Little did he 

know, trouble was brewing—the mother had filed a complaint with the 

Department of Children and Families about the husband’s behavior with 

the child; the husband said the allegations were false. The allegations 

remained pending throughout this litigation.

In November 2013, the boyfriend refiled a paternity petition. In that 

case, the mother and boyfriend, now apparently reconciled, filed a joint 

motion for scientific testing to determine parentage; both acknowledged

the possibility that the boyfriend was the baby’s father, but they were 

uncertain. The boyfriend was incarcerated at the time the motion was 

filed.

A circuit judge granted the motion for paternity testing, observing that 

the mother was not married to another at the time of the child’s conception 

or birth. The paternity test results were filed with the court a month later. 

The test determined that the boyfriend could not be excluded as the baby’s 

father and the probability of paternity was 99.9999%. The mother and the 

boyfriend filed an agreed parenting plan.

The husband moved to set aside the paternity testing, claiming that he 

was the child’s legal father and the paternity suit was refiled without notice 

to him. He also moved to consolidate the paternity case with the divorce 

action. The circuit judge granted both of the husband’s motions, 

consolidating the cases and striking the DNA results, which were declared

null and void. A Privette1 evidentiary hearing was set prior to the 

scheduled final hearing on paternity.

As required for a Privette hearing, the circuit court appointed a 

guardian ad litem (“GAL”) for the child in the paternity action. The GAL’s 

report concluded that it was in the child’s best interest to have the DNA 

testing done to determine paternity. Relevant to this conclusion was the 

prior testing, which had confirmed the boyfriend as the child’s father. The 

report stated that initially, the child had bonded with the husband and 

had called him “Daddy”; by the time of the report, the husband had not 

had recent contact with the child due to the mother’s abuse allegations. 

1Dep’t of Health & Rehab. Servs. v. Privette, 617 So. 2d 305 (Fla. 1993).
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The mother had rekindled her relationship with the boyfriend and had 

been taking the child to visit him in prison. As a result, the child now 

called the boyfriend “Daddy.”

With candor, the report noted that none of the parties had “shown the 

capacity to routinely and consistently make good judgments about 

themselves or others, so as to give the GAL confidence that the decision as 

to the DNA testing, whichever way it went, would result in a stable, safe, 

and healthy life for the child.” Under these circumstances, the GAL “opted 

for the truth,” finding the child had the right to know the truth about her 

parentage. The reintroduction of the husband into the child’s life “could 

at this point do more harm than good” and there was no hope of a positive 

and healthy relationship between the husband and mother “upon which 

to build a foundation for family stability.”

At the January 2015 Privette hearing, the boyfriend appeared by phone 

from prison; the boyfriend, mother, and the GAL were aligned together 

against the husband and his family. We briefly summarize the testimony 

as to each side. 

The boyfriend asserted he had supported the mother during the first 

eight months of her pregnancy. For three months after the birth, the 

boyfriend testified he made child support payments, which the mother did 

not deny. After he moved to Brevard County for a better job, the mother 

frustrated his access to the child by cutting off contact with him for two 

years. He did not see the child from 2010 to 2012. After the boyfriend 

and mother revived their relationship, the mother brought the child to the 

prison for visits and the child and the boyfriend had bonded. After release 

from prison, the boyfriend and mother planned to live together in a place 

where he had lined up a good job. 

The GAL’s testimony expanded on the findings in her report. She 

conceded that the husband loved the child and had been held out as the 

father during the first three years of the child’s life and it was the mother’s 

conduct and her allegations of abuse that had prevented the husband from 

seeing the child.

The husband pointed to the boyfriend’s 15-20 prior arrests, with his 

current incarceration being his fourth time in prison, to question the 

boyfriend’s stability. In contrast, the husband had a steady job at which 

he earned a good salary. The husband’s father and stepmother testified 

that the husband had been a “doting father” who brought the child to 

many family gatherings. Until the divorce proceedings, neither had known 

that the husband was not the child’s biological father. 
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The husband did not take the position that he could have been the 

biological father of the child. He did not testify that he and the mother 

had intercourse at a time that would have made his paternity a possibility. 

According to his testimony, the husband came into the child’s life in 2009 

when the mother was already “giantly pregnant” and in a lot of trouble. 

After the mother was arrested and jailed, the husband posted her bail and 

was present at the hospital when the child was born. 

Some months later, the husband joined with the mother in filing the 

Acknowledgement of Paternity and the two married and lived together for 

a year. During that time, he provided significant financial support and 

bonded with the child, who called him “Daddy.” He attended doctor’s visits 

and paid for Montessori school. The mother’s conduct and her false abuse 

allegations had kept him from the child since September 17, 2013.

After the hearing, the judge denied the motion for paternity testing, 

concluding that it was not in the child’s best interests, which is the 

standard for a Privette hearing. The court ordered the husband and the 

mother to “immediately begin reunification counselling so that the child 

and [the husband] can begin to re-establish their father-daughter 

relationship.”

Discussion

We approach this case by looking first to Chapter 742, Florida Statutes 

(2014), entitled “Determination of Parentage.” In July 2010, the mother 

and the husband filed an Acknowledgement of Paternity. Section 

742.10(1) provides that, for a child born out of wedlock, where two parties 

file a “voluntary acknowledgement of paternity,” such “acknowledgement 

constitutes the establishment of paternity for purposes of this chapter.” 

The acknowledgement creates a “rebuttable presumption” of paternity, 

subject to the right of “any signatory to rescind the acknowledgement 

within 60 days after the date the acknowledgement was signed or the date 

of an administrative or judicial proceeding relating to the child, . . . 

whichever is earlier.” Id.

The problem with applying the section 742.10(1) presumption is that 

the Acknowledgment of Paternity was fraudulent. Both the mother and 

the husband knew the husband could not have been the biological father 

when they signed that document. A presumption of paternity cannot rest 

on a false affidavit.

Similarly, the marriage of the husband and mother did not vest any 

rights in the husband. Section 742.091 provides that 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 
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the child of the husband and wife, as though born within wedlock.” § 

742.091, Fla. Stat. (2014) (emphasis added). The term “reputed father,” 

as used in section 742.091, “can be interpreted to mean the individual 

generally or widely believed or considered to be the biological father of a 

particular child.” A.S. v. S.F., 4 So. 3d 774, 776 (Fla. 5th DCA 2009). At 

the time of the marriage in this case, both the mother and the husband 

knew he could not have been the child’s biological father, so he could not 

be the “reputed” father within the meaning of the statute.

The boyfriend’s filing with the Florida Putative Father Registry 

preserved his rights to notice and consent to an adoption. To give the 

fraudulent filing of the Acknowledgement, coupled with the marriage, the 

legal effect of conferring paternity status on the husband would allow a

bypass of the entire Chapter 63 adoption process.

Because section 742.091 does not apply, the child is not “deemed” to 

be the child of the husband, “as though born within wedlock.” Contrary 

to what the trial judge believed, this case is not controlled by Department 

of Health and Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993).

See also Daniel v. Daniel, 695 So. 2d 1253, 1255 (Fla. 1997) (limiting 

Privette to “those instances where a child faces the threat of being declared 

illegitimate, and the ‘legal father’ also faces the threat of losing parental 

rights which he seeks to maintain”). Privette concerned the legitimacy of 

a child born into a marriage; the case recognized that a “child’s legally 

recognized father . . . has an unmistakable interest in maintaining the 

relationship with his child unimpugned.” Privette, 617 So. 2d at 307

(citing Santosky v. Kramer, 455 U.S. 745 (1982)). The test fashioned in 

Privette does not apply here, because it was undisputed that the mother

was unmarried when the child was born. Thus, the requirements imposed 

by the trial court—that the boyfriend seeking a paternity test prove by 

“clear and convincing evidence” that “the child’s best interests will be 

better served” by the test—were incorrect. 

In this case, the boyfriend demonstrated more than a “reasonable 

possibility of the requisite sexual contact” with the mother to justify a 

paternity test. § 742.12(2), Fla. Stat. (2014). Further, he rebutted the 

presumption of paternity created by the husband’s filing of the 

Acknowledgement of Paternity by demonstrating it was false. On remand, 

the court shall accept the results of the paternity test previously 

conducted.

We distinguish this case from J.A.I. v. B.R., 160 So. 3d 473 (Fla. 2d 

DCA 2015). In that case, a man filed an Acknowledgement of Paternity

pursuant to section 742.10(1), apparently with a good faith belief that it 

was possible he was the father of a child born out of wedlock. Id. at 74. 
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Based on such a good faith filing of the Acknowledgment, plus the 

marriage of the man and the mother prior to the filing of a second man’s 

paternity action, the second district concluded that the second man was 

precluded from challenging the paternity of a child. Id. at 475. A good 

faith filing of the Acknowledgement is absent in this case. 

We understand that the trial judge was well-intentioned in his 

conclusions that the husband and his family had the best interest of the 

child at heart, contrary to the poor choices demonstrated by the mother’s 

conduct. However, the applicable statutes do not authorize the 

elimination of the rights of the biological father under the circumstances 

of this case. We agree with the observation of the second district that 

difficult cases such as this one “present major public policy issues that 

are difficult, if not impossible, to address within the case law method.” 

Dept. of Revenue ex. rel Preston v. Cummings, 871 So. 2d 1055, 1061 (Fla. 

2d DCA 2004), approved, 930 So. 2d 604 (Fla. 2006). Unfortunately, the 

mother in this case has placed her child in a difficult situation beyond the 

ability of a court to ameliorate.

Reversed and remanded for further proceedings consistent with this 

opinion.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.