S.W.T., PETITIONER,
v.
C.A.P., RESPONDENT
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A husband sought certiorari to challenge a trial court order compelling blood tests to determine paternity. The appellate court held that the trial court erred by ordering blood testing without first determining whether the wife was estopped from challenging the husband's paternity based on the family's five-year cohabitation and the child's belief in the husband's paternity.
The trial court erred by entering the order compelling HLA blood testing without first determining whether the wife is estopped from challenging the paternity of the minor child. The case must be remanded for the trial court to make the estoppel determination before ordering blood tests.
[1] A trial court must determine whether a party is estopped from challenging paternity before ordering blood testing.
[2] Estoppel to deny paternity may be raised by evidence of the husband's presence at birth, wife's representations, husband's name on birth certificate, cohabitation as a fa…
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Join FLexlaw to unlock all legal intelligence“it was error for the trial court to enter the order compelling the HLA blood testing without first determining whether the wife is estopped from challenging the paternity of the minor child”
States the core holding requiring estoppel determination to precede blood testing orders
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Join FLexlaw to unlock all legal intelligenceHusband and wife cohabited for two years before marrying on June 5, 1985, and separated in May 1990. They had a child together and lived as a family u…
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PER CURIAM.
Petitioner/husband sought certiorari of that portion of a non-final order which compelled the husband, his wife, and their minor child, to submit to blood tests to determine whether the husband was the biological father of the child. In an order released earlier, this court granted the petition for writ of certiorari, quashed a specified portion of the trial court order, remanded the cause to the trial court to determine whether the respondent is es-topped from challenging the paternity of the minor child prior to making its determination as to whether blood testing is appropriate in this case, and advised an opinion would follow. This opinion provides the rationale for and reaffirms that order. The husband filed a petition for dissolution in September, 1990, seeking custody of the minor child born of the marriage, alleging that the couple had cohabited together for two years prior to their marriage on June 5, 1985, and had lived together as a family until the parties separated in May, 1990. The wife answered and counterclaimed, challenging the husband’s paternity. The husband contends that the wife is estopped to deny that he is the father.
At the hearing on the wife’s motion to compel the husband to submit to HLA blood testing, the trial court heard testimony from the husband, the wife, a friend of the husband, and a nonparty claiming to be the biological father of the child.
The trial court then entered the subject order, part of which compels the parties and minor child to submit to the testing without first making a determination on the estoppel issue.
The husband’s estoppel argument is based upon his presence in the delivery room when the child was born, his belief that the child was in fact his child based upon the wife’s representations, his name appearing on the birth certificate as the father, the fact that the parties and child lived together as a family unit for five years, the close and nurturing relationship between the child and husband throughout her life, the child’s belief that petitioner is her father, and the representation to others in the community that the child was the child of both parties. These facts demonstrate sufficient evidence to raise the issue of estoppel.
We hold that it was error for the trial court to enter the order compelling the HLA blood testing without first determining whether the wife is estopped from challenging the paternity of the minor child. In re the Marriage of M.P.S.H. v. D.H., 516 So. 2d 1151 (Fla. 4th DCA 1987); T.D.D. v. M.J.D.D. 453 So. 2d 856 (Fla. 4th DCA 1984).
ANSTEAD, GLICKSTEIN and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pitcairn v. Francine Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991)…the trial court to consider the res judicata and estop-pel arguments before determining whether blood testing was appropriate, citing T.D.D. v. M.J.D.D., supra. The fourth district recently reaffirmed and applied these decisions in S.W.T. v. C.A.P., 575 So. 2d 806 (Fla. 4th DCA 1991). In Marshall v. Marshall, 386 So. 2d 11 (Fla. 5th DCA), rev. denied, 392 So. 2d 1377 (Fla.1980), another dissolution proceeding, the husband denied that he was the father of one child born during the marriage and alleged that he…
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Marshek v. Marshek, 599 So. 2d 175 (Fla. 1st DCA 1992)…ies of juvenile court judges). In granting the writ, the majority relies upon three cases in which the Fourth District held that a trial judge must resolve a non-movant’s claim of estoppel before granting a motion for HLA testing. S.W.T. v. C.A.P., 575 So. 2d 806 (Fla. 4th DCA 1991); M.P.S.H. v. D.H., 516 So. 2d 1151 (Fla. 4th DCA 1987); T.D.D. v. M.J.D.D., 453 So. 2d 856 (Fla. 4th DCA 1984). It should be noted, however, that the Fourth District decided M.P.S.H. and T.D.D. before section 742.12(1) was amende…1 / 2
Authorities Cited
- T.D.D. v. M.J.D.D., 453 So. 2d 856 (Fla. 4th DCA 1984)
- In re the Marriage of M.P.S.H. v. D.H., 516 So. 2d 1151 (Fla. 4th DCA 1987)
- State v. Medley, 516 So. 2d 1151 (Fla. 4th DCA 1987)