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AULET V. CASTRO
State: Florida
Court: Florida Southern District Court
Docket No: 3D08-0775
Case Date: 07/28/2010
Plaintiff: AULET
Defendant: CASTRO
Preview:Third District Court of Appeal
State of Florida, July Term, A.D., 2010
Opinion filed July 28, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D08-775 Lower Tribunal No. 03-25223 ________________

Juan Carlos Aulet,
Appellant, vs.

Jinny M. Castro f/k/a Jinny M. Aulet,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Eugene J. Fierro, Judge. Christy L. Hertz; Greene Smith and Cynthia L. Greene, for appellant. Carrera & Amador and Juan M. Carrera and Carmen G. Amador, for appellee.

Before SHEPHERD, ROTHENBERG, and LAGOA, JJ. LAGOA, J., The appellant, Juan Carlos Aulet ("former husband"), appeals from the trial court's order dismissing his petition to disestablish paternity and terminate child

support filed pursuant to section 742.18, Florida Statutes (2007). The trial court dismissed the petition because of the former husband's failure to meet several of the requirements set forth in subsection 742.18(1), including his failure to include with the petition scientific tests administered within ninety days prior to the filing of the petition. We affirm the trial court's order. The former husband and the appellee, Jinny Castro ("former wife"), were divorced in December 2003. Pursuant to the terms of the final judgment and settlement agreement, the former husband was named as the father of the parties' three minor children. The husband subsequently had two separate DNA tests performed on one of the children, the first of which had a report date of April 5, 2007, and the second of which had a report date of May 1, 2007. Both tests concluded that there is a zero percent chance that the former husband is the father of the child upon whom the tests were conducted. On September 28, 2007, the former husband filed a Verified Petition for Disestablishment of Paternity, Termination of Child Support Obligation, and Challenge of Acknowledgement of Paternity pursuant to section 742.18. Section 742.18 provides, in relevant part: (1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation. The petition must be served on the mother or 2

other legal guardian or custodian of the child. If the child support obligation was determined administratively and has not been ratified by a court, then the petition must be filed in the circuit court where the mother or legal guardian or custodian resides. Such a petition must be served on the Department of Revenue and on the mother or legal guardian or custodian. If the mother or legal guardian or custodian no longer resides in the state, the petition may be filed in the circuit court in the county where the petitioner resides. The petition must include: (a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination or establishment of a child support obligation. (b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested. (c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due (2) The court shall grant relief on a petition filed in accordance with subsection (1) upon a finding by the court of all of the following: (a) Newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since 3

the initial paternity determination or establishment of a child support obligation. (b) The scientific test required in paragraph (1)(b) was properly conducted. (c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due. (d) The male ordered to pay child support has not adopted the child. (e) The child was not conceived by artificial insemination while the male ordered to pay child support and the child's mother were in wedlock. (f) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his paternal rights with respect to the child. (g) The child was younger than 18 years of age when the petition was filed. (emphasis added). In the petition, the former husband asserted under oath the existence of newly discovered evidence relating the paternity of the child. He also alleged that he had two DNA tests conducted, both of which showed that there was a zero percent chance that he is the father of the child, but that "[t]he two paternity tests were taken more than 90 days prior to the date of this Petition because the FormerWife has refused the Former-Husband access to the subject minor child . . . since May, 2007."

4

The petition did not attach an affidavit, pursuant to subsection 742.18(1)(b), stating that the former husband did not have access to the child to perform the DNA tests within the ninety-day period. Nor did the petition request the trial court to order the child to be tested. The former wife filed a motion to dismiss, arguing that the petition should be dismissed because the former husband failed to comply with several mandatory requirements of subsection 742.18(1), including the requirement that the petition include the results of scientific tests "administered within 90 days prior to the filing of such petition."
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