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In wedlock, out of wedlock: the challenges of establishing paternity of a married woman’s child, P.2

Last time, we began discussing at the case of a Florida man who is looking to potentially challenge current Florida paternity law, which makes it very difficult for men to establish paternity and obtain parental rights of a child born to a married woman.

The first hurdle in such cases is establishing paternity. Florida law does allow men who claim to be the father of a child born to a married woman to petition for the establishment of paternity. The man seeking to establish paternity must be able to demonstrate, first of all, the reasonable possibility of requisite sexual contact, or to provide a sworn statement from the woman’s husband denying paternity and establishing a reasonable possibility of the nonexistence of sexual contact between the woman and her husband. 

The results of scientific testing for paternity, contrary to what many assume, do not definitely establish paternity. Scientific testing is not always 100 percent accurate, for one thing, and the accuracy of testing can be challenged in various ways. The laboratory must be qualified and trusted, the technicians must be properly trained and in good professional standing, and have a good performance record. The tests used must be generally acceptable within the scientific community, and proper procedures must be followed with respect to documenting the chain of custody of blood or other specimens.

Objections may be made to the accuracy of testing, and these can undermine the evidentiary weight of paternity testing. Absent objections, the test results may be admitted as evidence and considered along with other evidence of paternity of the alleged father. This is true in all cases except those in which the statistical probability of paternity is equal to or greater than 95 percent, in which case there is a rebuttable presumption of paternity, which would usually be difficult to overcome.

In our next post, we’ll pick back up on this discussion, looking at the hurdle of establishing custody once paternity is established. 

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