JOHN GINGOLA, APPELLANT,
v.
FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES AND TERESA LAWLOR, APPELLEES
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In a paternity proceeding brought by the State of Florida and Teresa Lawlor against John Gingola, the appellate court reversed the trial court's judgment adjudicating Gingola as the biological father of Lawlor's child because the trial court failed to follow required procedures under Florida Supreme Court precedent to protect the child's interests before ordering paternity establishment.
The trial court erred by adjudicating paternity without first appointing a guardian ad litem and conducting proceedings to determine that the complaint was apparently accurate and brought in good faith, and to find that the child's best interests would be better served by establishing paternity even if the child would be declared illegitimate.
[1] A child born during a marriage is presumed to be legitimate.
[2] Before ordering a blood test in a paternity proceeding, a trial court must determine the complaint is factually accurate, brought in good faith, and likely to be supporte…
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Join FLexlaw to unlock all legal intelligence“cases such as this are actually 'about impugning the legitimacy of a child for the sake of money allegedly owed to the State of Florida.'”
Establishes the court's characterization of the state's true interest in these cases and the need for protective procedures
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Join FLexlaw to unlock all legal intelligenceTeresa Lawlor brought a paternity proceeding against John Gingola regarding her child, who was conceived in 1979 when Lawlor was married to another ma…
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[*1111] FULMER, Judge.
In a paternity proceeding brought by the Florida Department of Health and Rehabilitative Services and Teresa Lawlor, John Gin-gola appeals the final judgment which adjudicated him to be the father of Ms. Lawlor’s child. We reverse and remand for further proceedings.
Gingola challenges a hearing officer’s ruling admitting HLA test results into evidence.
We find no error with this ruling.
However, we note that at the time of the child’s conception in 1979, Ms. Lawlor was married to another man whose name appears on the birth certificate.
Therefore, this child is presumed to be legitimate. In Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305, 307 (Fla.1993), the Florida Supreme Court observed that cases such as this are actually “about impugning the legitimacy of a child for the sake of money allegedly owed to the State of Florida.” The court held that, in cases of this type, prior to ordering a blood test the trial court is required to hear argument from parties, including the legal father if he wishes to appear and a guardian ad litem appointed to represent the child: “(a) to determine that the complaint is apparently accurate factually, is brought in good faith, and is likely to be supported by reliable evidence, and (b) to find that the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy.” Id. at 308.
The court further found that even if a test establishes that someone other than the child’s legal father is the biological father, “this fact without more does not constitute grounds to grant a paternity petition.” Id. at 309.
Rather, it must be determined “whether the child’s best interests will be served by being declared illegitimate and having parental rights transferred to the biological father.” Id. at 309.
The party seeking to establish paternity bears the burden of proof by clear and convincing evidence. From our review of the record, it appears that no such determination was made.
We recognize that neither the hearing officer nor the trial judge had the benefit of the supreme court’s ruling at the time this ease proceeded to final judgment. Upon remand, the trial court should appoint a guardian ad litem and conduct further proceedings as required by Privette.
Reversed and remanded with directions.
CAMPBELL, A.C.J., and ALTENBERND, J., concur.
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In re E.F. v. Dep't of Health & Rehabilitative Servs., 639 So. 2d 639 (Fla. 2d DCA 1994)…te, 617 So. 2d 305 (Fla.1993); In re 634 N.E. 2d 551 (Ind. App. 5 Dist.1994). This court has applied Privette retroactively to appeals where the error had not been raised in the trial court. Gingola v. Department of Health and Rehabilitative Servs., 634 So. 2d 1110 (Fla. 2d DCA 1994). The role of HRS and the court is different in a parental termination proceeding than in a paternity action, but the proceedings do have similarities. Finally, we are aware that a few states have treated the omission of a guardia…
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State v. Salch, 673 So. 2d 904 (Fla. 2d DCA 1996)…n during the course of his marriage and requesting blood testing. Under these circumstances, the court was mandated by the supreme court in Privette to appoint a guardian ad litem. Accord Gin-gola v. Department of Health and Rehabilitative Services, 634 So. 2d 1110 (Fla. 2d DCA 1994). This allegation of nonpaternity by the father was made during the course of a divorce proceeding where the father was represented by counsel. There has been no determination that Mr. Saleh is not financially able to pay for the g…
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T.J. v. Dep't of Child. & Families, 860 So. 2d 517 (Fla. 4th DCA 2003)…. (2002); P.N.V. v. Wash, exrel. T.R.D., 654 So. 2d 1274, 1275 (Fla. 2d DCA 1995). Under chapter 742, paternity must be established by clear and convincing evidence. See § 742.031, Fla. Stat.; Gingola v. Fla. Dep’t of Health & Rehabilitative Servs., 634 So. 2d 1110, 1111 (Fla. 2d DCA 1994). This burden of proof cannot be avoided simply because, in this case, the paternity adjudication was made in the context of a chapter 39 proceeding. It is unclear from the trial court’s order precisely what burden of proof…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't OF Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla. 1993)