LAWRENCE JOSEPH WHITE, APPELLANT,
v.
DEANA KATHLEEN WHITE, APPELLEE
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A father sought to disestablish his paternity based on blood test results showing zero percent probability of biological paternity. The trial court denied his motion without appointing a guardian ad litem to represent the child's interests. The appellate court reversed, holding that a guardian ad litem must be appointed to consider whether the child's best interests require continued legal paternity despite biological non-parentage.
A guardian ad litem must be appointed to represent the child as an indispensable party in paternity determinations. The child's best interests may require continued legal paternity even after biological non-parentage is proven, or may be better served by a determination of illegitimacy; therefore, a full evidentiary hearing on the child's best interests is required before any paternity determination can be made.
[1] An order denying a motion to determine paternity in an ongoing dissolution proceeding is not a final order and is not an appealable non-final order under Florida Rule of…
[2] A notice of appeal from a non-appealable order may be treated as a petition for writ of certiorari.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the child's best interests may require that the legal father continue in that role even after he has been proven not to be the biological father”
Establishes that biological non-parentage does not automatically terminate legal paternity; best interests of the child may favor continued legal relationship.
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Join FLexlaw to unlock all legal intelligenceThe parties were married less than five months before the child's birth, and the appellant's name appears on the birth certificate. The parties stipul…
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PER CURIAM.
Appellant, the legal father, seeks review of a non-final order denying his motion to determine paternity. The order is neither final, because it was entered in an ongoing dissolution proceeding, nor is it a non-final, appealable order under Florida Rule of Appellate Procedure 9.130(a)(3). We are treating the notice of appeal as a petition for writ of certiorari. See Fla.RApp.P. 9.040(c).
The parties were married less than five months before Appellee delivered a child. Appellant’s name appears on the birth certificate as the father. The parties’ relationship deteriorated and Appellant sought a dissolution of the marriage. The parties stipulated to undergoing blood testing to resolve the issue of the child’s paternity. The test results showed that there was a zero percent probability that Appellant was the biological father of the child. Armed with the results, Appellant filed a motion to determine paternity. He sought a court order determining that he was not the legal father and asked the court to terminate his parental rights and responsibilities relative to the child.
Without appointing a guardian ad litem to represent and protect the child’s best interests as mandated by Department of Health & Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla.1993), the trial court ordered that Appellant would have to continue in the role of legal father “unless evidence can be produced indicating some other individual is in fact the child’s father.” The order was entered without prejudice to Appellant to raise the issue again “should he develop evidence indicating that someone else is the natural father of the minor child.”
The trial court was not in a posture to make this decision in the absence of a guardian ad litem to properly place the issue of the child’s best interests before it. See Privette, 617 So. 2d at 308 n. 5 (holding that the child, as represented by the guardian ad litem, is an indispensable party in a paternity determination). As the supreme court acknowledged in Privette, the child’s best interests may require that the legal father continue in that role even after he has been proven not to be the biological father. It is also possible that the child’s best interests may be better served by a determination of illegitimacy. Accordingly, a full evidentiary hearing on the issue of the child’s best interests is required. See also Owmby v. Owmby, 639 So. 2d 135 (Fla. 5th DCA 1994). Consequently, we grant the petition for writ of certiorari and remand with directions to proceed according to the dictates of Privette and Ovmby.
PETITION GRANTED; REMANDED with directions.
COBB, GOSHORN and THOMPSON, JJ., concur.
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Melinda Sharon Alchin and John v. Bentley, Jr., 667 So. 2d 477 (Fla. 2d DCA 1996)…e determining the child’s best interests. 617 So. 2d at 308. Although Privette was a paternity action, we hold that the principles applied in that case [*480] are equally applicable in a dissolution of marriage proceeding. See, e.g., White v. White, 661 So. 2d 940 (Fla. 6th DCA 1996). Thus, we reverse and remand for proceedings in accordance with Privette. Upon remand, the trial court is required to appoint a guardian ad litem to represent the child and to conduct a hearing to: (1) determine if the complaint…
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Schmidt v. Liza Nipper (Fla. 1st DCA 2020)…case law indicating that it is reversible error to fail to appoint a guardian ad litem to represent a minor child’s interests when the issue of paternity has been raised. See Alchin v. Alchin, 667 So. 2d 477, 479 (Fla. 2d DCA 1996); White v. White, 661 So. 2d 940, 940-41 (Fla. 5th DCA 1995). However, the failure to appoint a guardian ad litem renders a judgment voidable, not void. See Brown v. Ripley, 119 So. 2d 712, 715 (Fla. 1st DCA 1960); see also Lopez v. Variety Children’s Hosp., 600 So. 2d 506, 506 (Fl…
Authorities Cited
- Dep't OF Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla. 1993)
- Ownby v. Marina L. Ownby, 639 So. 2d 135 (Fla. 5th DCA 1994)