DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

L.G., the Father,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee.

No. 4D17-2004

[ October 11, 2017 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Stacey Schulman, Judge; L.T. Case No. 11-3594 DP.

Lori D. Shelby of Law Office of Lori D. Shelby, Fort Lauderdale, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, 

Assistant Attorney General, Fort Lauderdale, for appellee.

ON CONFESSION OF ERROR

TAYLOR, J.

L.G., the legal father of a dependent child, appeals an order denying his 

petition to disestablish paternity under section 742.18, Florida Statutes 

(2016). L.G. was never married to the mother, but he acknowledged 

paternity on the child’s birth certificate. During the dependency 

proceedings, L.G. petitioned to disestablish paternity based on newly 

discovered evidence—namely, a recent DNA test showing that he was not 

the biological father of the child. However, the trial court denied the 

petition, ruling that it could not disestablish paternity unless another 

putative father was willing to “step in” and establish paternity. We accept 

the Department’s confession of error and reverse.

The trial court’s ruling was based upon Department of Health and 

Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993). In Privette, 

our supreme court held that before a blood test can be ordered to 

determine paternity in cases where the child is born legitimate, the trial 

court must find that the child’s best interests will be better served by the 
2

blood test “even if the blood test later proves the child’s factual 

illegitimacy.” Id. at 307–08. As the supreme court later explained, 

“Privette addressed a case of contested paternity involving blood tests, and 

its application is limited 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.” Daniel v. Daniel, 695 

So. 2d 1253, 1255 (Fla. 1997).

In 2006, however, after Privette, the legislature enacted section 742.18, 

Florida Statutes. See Ch. 2006–265, § 1, Laws of Fla.; see also Drouin v. 

Stuber, 168 So. 3d 305, 307 (Fla. 4th DCA 2015) (recognizing the 2006 

legislative change). By enacting this statute, “the legislature provided that 

even after paternity has been established and the father-child relationship 

has been fostered, there is a mechanism by which a man may disestablish 

his paternity and avoid further obligation to support the child.” P.G. v. 

E.W., 75 So. 3d 777, 783 (Fla. 2d DCA 2011).

Here, the trial court erred in ruling that another putative father must 

be willing to establish paternity before appellant’s petition for 

disestablishment of paternity could be granted. Section 742.18 contains 

no such requirement.

As noted above, Privette was decided prior to the enactment of section 

742.18. To the extent Privette was not superseded by section 742.18, it 

has no application to these facts. A Privette “best interests” inquiry applies 

only in contested cases 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. Neither situation applies here. In the 

instant case, the child does not face the threat of losing legitimacy (as the 

child was not born legitimate), and the legal father does not seek to 

maintain his parental rights.

Accordingly, we reverse the order denying the petition and remand for 

further proceedings. If the trial court finds on remand that all of the 

requirements for disestablishing paternity under section 742.18 are 

satisfied, the trial court shall grant relief on the petition.

Reversed and Remanded.

GERBER, C.J., and WARNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.