       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
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]

                                     -2-
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 Privette 1 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).

                                         -3-
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.



                                     -4-
   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

                                    -5-
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.


                                     -6-
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.




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