Module 2 Discussion Problem

• (1)(a) In a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30. The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments when the modification is found necessary by the court in the best interests of the child, when the child reaches majority, or when there is a substantial change in the circumstances of the parties. The court initially entering a child support order shall also have continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.

(b) Each order for support shall contain a provision for health care coverage for the minor child when the coverage is reasonably available. Coverage is reasonably available if either the obligor or obligee has access at a reasonable rate to a group health plan. The court may require the obligor either to provide health care coverage or to reimburse the obligee for the cost of health care coverage for the minor child when coverage is provided by the obligee. In either event, the court shall apportion the cost of coverage, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6). The court may order that payment of uncovered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis.

(c) To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.

3. If both parties request and the court finds that it is in the best interest of the child, support payments need not be directed through the depository. The order of support shall provide, or shall be deemed to provide, that either party may subsequently apply to the depository to require direction of the payments through the depository. The court shall provide a copy of the order to the depository.

(2)(a) The court shall have jurisdiction to determine custody, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the primary purpose of removing the child from the jurisdiction of the court in an attempt to avoid a determination or modification of custody.

(b)1. The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.

2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.

a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

b. The court shall order "sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of" the minor child.

3. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to a parent because the parent is not the child's primary residential parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers.

(c) The circuit court in the county in which either parent and the child reside or the circuit court in which the original award of custody was entered have jurisdiction to modify an award of child custody. The court may change the venue in accordance with s. 47.122.

(d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. In making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.

2. The extent to which visitation rights have been allowed and exercised.

3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.

5. Whether the cost of transportation is financially affordable by one or both parties.

6. Whether the move is in the best interests of the child.

(3) For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including, but not limited to:

(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.

(b) The love, affection, and other emotional ties existing between the parents and the child.

(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

(k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.

(l) Evidence of domestic violence or child abuse.

(m) Any other fact considered by the court to be relevant.

(4)(a) When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent's visitation rights.

(b) When a custodial parent refuses to honor a noncustodial parent's visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c) When a custodial parent refuses to honor a noncustodial parent's or grandparent's visitation rights without proper cause, the court shall, after calculating the amount of visitation improperly denied, award the noncustodial parent or grandparent a sufficient amount of extra visitation to compensate the noncustodial parent or grandparent, which visitation shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the person deprived of visitation. In ordering any makeup visitation, the court shall schedule such visitation in a manner that is consistent with the best interests of the child or children and that is convenient for the noncustodial parent or grandparent. In addition, the court:

1. May order the custodial parent to pay reasonable court costs and attorney's fees incurred by the noncustodial parent or grandparent to enforce their visitation rights or make up improperly denied visitation;

2. May order the custodial parent to attend the parenting course approved by the judicial circuit;

3. May order the custodial parent to do community service if the order will not interfere with the welfare of the child;

4. May order the custodial parent to have the financial burden of promoting frequent and continuing contact when the custodial parent and child reside further than 60 miles from the noncustodial parent;

5. May award custody, rotating custody, or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award is in the best interests of the child; or

6. May impose any other reasonable sanction as a result of noncompliance.

(d) A person who violates this subsection may be punished by contempt of court or other remedies as the court deems appropriate.

(5) The court may make specific orders for the care and custody of the minor child as from the circumstances of the parties and the nature of the case is equitable and provide for child support in accordance with the guidelines in s. 61.30. An award of shared parental responsibility of a minor child does not preclude the court from entering an order for child support of the child.

(6) In any proceeding under this section, the court may not deny shared parental responsibility, custody, or visitation rights to a parent or grandparent solely because that parent or grandparent is or is believed to be infected with human immunodeficiency virus; but the court may condition such rights upon the parent's or grandparent's agreement to observe measures approved by the Centers for Disease Control and Prevention of the United States Public Health Service or by the Department of Health for preventing the spread of human immunodeficiency virus to the child.

(7) If the court orders that parental responsibility, including visitation, be shared by both parents, the court may not deny the noncustodial parent overnight contact and access to or visitation with the child solely because of the age or sex of the child.

(8)(a) Beginning July 1, 1997, each party to any paternity or support proceeding is required to file with the tribunal as defined in s. 88.1011(22) and State Case Registry upon entry of an order, and to update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver's license number, and name, address, and telephone number of employer. Beginning October 1, 1998, each party to any paternity or child support proceeding in a non-Title IV-D case shall meet the above requirements for updating the tribunal and State Case Registry.

(b) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

(c) Beginning July 1, 1997, in any subsequent Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party, upon delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry pursuant to paragraph (a). Beginning October 1, 1998, in any subsequent non-Title IV-D child support enforcement action between the parties, the same requirements for service shall apply.

(9) At the time an order for child support is entered, each party is required to provide his or her social security number and date of birth to the court, as well as the name, date of birth, and social security number of each minor child that is the subject of such child support order. Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. All social security numbers required by this section shall be provided by the parties and maintained by the depository as a separate attachment in the file. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

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61.20 Social investigation and recommendations when child custody is in issue.--

• (1) In any action where the custody of a minor child is in issue, the court may order a social investigation and study concerning all pertinent details relating to the child and each parent when such an investigation has not been done and the study therefrom provided to the court by the parties or when the court determines that the investigation and study that have been done are insufficient. The agency, staff, or person conducting the investigation and study ordered by the court pursuant to this section shall furnish the court and all parties of record in the proceeding a written study containing recommendations, including a written statement of facts found in the social investigation on which the recommendations are based. The court may consider the information contained in the study in making a decision on the child's custody and the technical rules of evidence do not exclude the study from consideration.

(2) A social investigation and study, when ordered by the court, shall be conducted by qualified staff of the court; a child-placing agency licensed pursuant to s. 409.175; a psychologist licensed pursuant to chapter 490; or a clinical social worker, marriage and family therapist, or mental health counselor licensed pursuant to chapter 491. If a certification of indigence based on an affidavit filed with the court pursuant to s. 57.081 is provided by an adult party to the proceeding and the court does not have qualified staff to perform the investigation and study, the court may request that the Department of Children and Family Services conduct the investigation and study.

(3) Except as to persons who obtain certification of indigence as specified in subsection (2), for whom no costs shall be incurred, the adult parties involved in a child custody proceeding wherein the court has ordered a social investigation and study performed shall be responsible for the payment of the costs of such investigation and study. Upon submission of the study to the court, the agency, staff, or person performing the study shall include a bill for services, which shall be taxed and ordered paid as costs in the proceeding.

Part II: Uniform Child Custody Jurisdiction and Enforcement Act (ss.61.501-61.542)

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61.502 Purposes of part; construction of provisions.--The general purposes of this part are to:

• (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.

(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child.

(3) Discourage the use of the interstate system for continuing controversies over child custody.

(4) Deter abductions.

(5) Avoid relitigating the custody decisions of other states in this state.

(6) Facilitate the enforcement of custody decrees of other states.

(7) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.

(8) Make uniform the law with respect to the subject of this part among the states enacting it.

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61.503 Definitions.--As used in this part, the term:

• (1) "Abandoned" means left without provision for reasonable and necessary care or supervision.

(2) "Child" means an individual who has not attained 18 years of age.

(3) "Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) "Child custody proceeding" means a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under ss. 61.524-61.540.

(5) "Commencement" means the filing of the first pleading in a proceeding.

(6) "Court" means an entity authorized under the laws of a state to establish, enforce, or modify a child custody determination.

(7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

(8) "Initial determination" means the first child custody determination concerning a particular child.

(9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this part.

(10) "Issuing state" means the state in which a child custody determination is made.

(11) "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, regardless of whether it is made by the court that made the previous determination.

(12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, instrumentality, or public corporation; or any other legal or commercial entity.

(13) "Person acting as a parent" means a person, other than a parent, who:

(a) Has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and

(b) Has been awarded a child-custody determination by a court or claims a right to a child-custody determination under the laws of this state.

(14) "Physical custody" means the physical care and supervision of a child.

(15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(16) "Tribe" means an Indian tribe, or band, or Alaskan Native village that is recognized by federal law or formally acknowledged by a state.

(17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

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61.514 Initial child custody jurisdiction.--

• (1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

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(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:

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1. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or

(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).

(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., Petitioner, vs. WILLIAM PRIVETTE, Respondent.

No. 78,837

SUPREME COURT OF FLORIDA

617 So. 2d 305; 1993 Fla. LEXIS 601; 18 Fla. L. Weekly S 226

April 8, 1993, Decided

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PRIOR HISTORY: [**1] Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions. Second District - Case No. 91-00536. (Charlotte County)

LexisNexis(R) Headnotes

COUNSEL: Joseph R. Boyd and William H. Branch of Boyd & Branch, P.A., Tallahassee, Florida; and Chriss Walker, Department of Health and Rehabilitative Services, Tallahassee, Florida, for Petitioner.

Daniel A. David, Sarasota, Florida, for Respondent.

JUDGES: KOGAN, BARKETT, OVERTON, McDONALD, SHAW, HARDING, GRIMES,

OPINIONBY: KOGAN

OPINION: [*306] KOGAN, J.

We have for review Privette v. State Department of Health & Rehabilitative Services, 585 So. 2d 364 (Fla. 2d DCA 1991), based on express and direct conflict with Pitcairn v. Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The Florida Department of Health & Rehabilitative Services (HRS) pursued this action against William Privette on behalf of a woman who alleged that Privette was the father of her daughter. n1 By sworn complaint, the woman alleged that she was unmarried at the time the child was born, [*307] that she had had sexual relations [**2] with Privette at the time of the child's conception, and that he was the child's natural father.

n1 The state agency essentially is seeking remuneration from the putative natural father for public funds spent on behalf of the child.

In actuality, the woman was married to another man at the time of her daughter's birth, although no evidence was developed refuting her contention of marital infidelity during conception. Moreover, when obtaining her daughter's birth certificate, the woman had stated that her husband was the father. The certificate so notes.

Based solely on the complaint, the trial court ordered Privette to undergo a human leukocyte antigen test, a medical procedure that can determine paternity with a high degree of certainty. Privette then petitioned the Second District for common law writ of certiorari. The district court granted the petition, reasoning that Privette's privacy rights and the best interests of the child should have been weighed by the trial court. Privette, 585 So. 2d at 366. [**3]

It is easy to misperceive cases of this type as concerning little more than men allegedly trying to evade parental obligations. This is a temptation the courts must avoid. In actuality, this is a case about impugning the legitimacy of a child for the sake of money allegedly owed to the State of Florida. And it also is a case about impugning the parental rights of the child's present legal father for the same reason. n2 Sometimes there may be good grounds for doing so. But as a matter of public policy, we cannot agree that the State can risk plunging children into the stigma of illegitimacy and undermining parental rights for no better reason than appears on the present record. A good deal more is required.

n2 Of course the mere fact of a blood test establishing the putative natural father's paternity does not in itself result in a legal declaration of illegitimacy or a legal termination of the legal father's parental rights.

We must start from the premise that the presumption of legitimacy is based on the policy of [**4] protecting the welfare of the child, i.e., the policy of advancing the best interests of the child. Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972). This policy is a guiding principle that must inform every action of the courts in this sensitive legal area.

The present suit was for all practical purposes originated by HRS based on a standard complaint form consisting almost entirely of preprinted fill-in-the-blank boilerplate language signed by the mother. The complaint is not even accurate, because it alleges that the child was "born out of wedlock." There is no indication the mother had any other role in the proceedings or showed any interest in them whatsoever. All she did was sign her name to a document, apparently at HRS's insistence.

Essentially this case has been litigated as though it is about nothing more than repayment of money HRS expended on behalf of the child.

At the trial bench, the parties stipulated to a few sketchy facts, made a few arguments, and a blood test was ordered for reasons the trial court did not make clear. We can only assume the trial court agreed that the test was justified based entirely on HRS's financial interests. There [**5] was absolutely no consideration of the child's best interests and no mention of the child's legal father. For all we know, no attempt was made to notify the legal father (i.e., the one listed on the birth certificate) nor was he given the chance to intervene, if he in fact is available and so desires.

While we do not quarrel with HRS's legal authority to pursue paternity cases, such authority does not take precedence over a child's future interests, nor over the sanctity of legally established family relationships about which we know next to nothing on the present record. See Carlson v. State Dept. of Health & Rehab. Servs., 378 So. 2d 868 (Fla. 2d DCA 1979).

Once children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests. Art. I, § 9, Fla. Const. The child's legally recognized father likewise has an unmistakable interest in maintaining the relationship with his child unimpugned, Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); [*308] In re D.B., 385 So. 2d 83 (Fla. 1980), [**6] such that his opposition to the blood test and reasons for so objecting would be relevant evidence in determining the child's best interests. n3

n3 For example, a legal father who is actively participating in the care and custody of his legal child would be entitled to object to the test on grounds that he is satisfied with his status and does not want the child's legitimacy questioned in any way. See Brenda J. Runner, Protecting a Husband's Parental Rights When His Wife Disputes the Presumption of Legitimacy, 28 J. Fam. L. 115 (1989-90). In appropriate cases, parents can be equitably estopped from disputing paternity where they previously have acknowledged the legal father's paternity, e.g. Wade v. Wade, 536 So. 2d 1158 (Fla. 1st DCA 1988); Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762 (N.Y. App. 1983), or the legal father's paternity could be ruled unassailable based on other equitable principles where the legal father has established a mutually rewarding relationship with the child, he desires to continue exercising parental rights, he is supporting the child to the best of his ability, and maintaining the existing relationship is in the child's best interests. See Marshek v. Marshek, 599 So. 2d 175 (Fla. 1st DCA 1992); Atkinson v. Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (Mich. App. 1987). Obviously, the same concerns would not apply where the legal father has abandoned the child or otherwise has acted contrary to the child's best interests.

[**7]

Thus, before a blood test can be ordered in cases of this type, the trial court is required to hear argument from the parties, including the legal father if he wishes to appear n4 and a guardian ad litem appointed to represent the child. n5 See State in re J.W.F., 799 P.2d 710, 713 (Utah 1990). HRS also may be an appropriate party in cases involving the expenditure of public monies on behalf of the child.

n4 The legal father must be given notice of the hearing either actually if he is available or constructively if otherwise; and he must be heard if he wishes to argue personally or through counsel.

n5 The child as represented by the guardian ad litem is an indispensable party, since the child's best interests are the primary issue of the proceeding.

We essentially agree with the test adopted by the district court below with a few refinements. The trial court hearing a petition for a blood test is required: (a) to determine that the complaint is apparently accurate factually, is brought [**8] in good faith, and is likely to be supported by reliable evidence, n6 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. The one seeking the test bears the burden of proving these elements by clear and convincing evidence. See Smith v. Department of Health & Rehabilitative Servs., 522 So. 2d 956 (Fla. 1st DCA 1988).

n6 In considering this factor, the trial court should take into account inconsistent statements made by the mother. Inconsistent statements about paternity may not always defeat a complaint, but they certainly cast doubt on its good faith. On the other hand, the complainant could overcome these doubts by showing legitimate and believable reasons for the inconsistent statements. As noted above, inconsistent statements made by the mother could constitute an estoppel as to any claim she might bring, in an appropriate case.

While this burden is substantially greater than would apply in any [**9] other discovery context, we believe it is absolutely mandated by the presumption of legitimacy and the policies on which it rests. Court after court in the United States has held that the presumption and its related policies are so weighty that they can defeat even the claim of a man proven beyond all doubt to be the biological father. E.g., Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989); John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (Pa.), cert. denied, 498 U.S. 850, 112 L. Ed. 2d 107, 111 S. Ct. 140 (1990); State in re J.W.F., 799 P.2d 710 (Utah 1990); Monroe v. Monroe, 88 Md. App. 132, 594 A.2d 577 (Md. App.), cert. granted, 599 A.2d 90 (Md. 1991); Foster v. Whitley, 564 So. 2d 990 (Ala. Civ. App. 1990); In re Marriage of Klebs, 196 Ill. App. 3d 472, 143 Ill. Dec. 363, 554 N.E.2d 298 (Ill. App. 1990); In re Marriage of Ross, 13 Kan. App. 2d 402, 772 P.2d 278 (Kan. App.), aff'd in part & rev'd in part on other grounds, 245 Kan. 591, 783 P.2d 331 (Kan. 1989); [**10] Banta v. Banta, 782 P.2d 946 (Okla. App. 1989); Atkinson v. Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (Mich. App. 1987); Nelson v. Nelson, 10 Ohio App. 3d 36, 460 N.E.2d 653 (Ohio App. 1983); State ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488 (N.Y. App. Div. 1982); see In re Marriage of A., 41 Ore. App. 679, 598 P.2d 1258 (Or. App. 1979).

[*309] The New York intermediate appellate court in H. v. P. has stated that, while the presumption of legitimacy is rebuttable, it will not fail unless common sense and reason are outraged by applying it to the case at hand. H. v. P., 457 N.Y.S.2d at 491. We take this to mean that there must be a clear and compelling reason based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father. This is at least the equivalent of the burden of proof that would exist in proceedings to terminate the legal father's parental rights. n7 See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). [**11] Thus, if a test shows that Respondent is the child's biological father, this fact without more does not constitute grounds to grant a paternity petition.

n7 We essentially are dealing with a species of termination proceeding when the petition will have the effect of vesting parental rights in the putative natural father and removing parental rights from the legal father. We do not see how a court constitutionally could apply a standard less than that recognized in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), and other applicable case law where this is true.

This conclusion is especially compelling in light of the fact that we must establish a neutral rule applicable to all cases of this type. While there may be some cases where the child has had little contact with the legal father, other cases will be quite the contrary. It is conceivable that a man who has established a loving, caring relationship of some years' duration [**12] with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children's best interests to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.

All of this has important consequences in deciding whether a blood test will be permitted in the first instance. If the record shows there is no possibility the presumption of legitimacy can be overcome by the blood test result (whatever it might be), then the test will serve no purpose at all. If there is no purpose, the petition should be denied. The child should not risk being stigmatized without reason. Thus, in a real sense, the trial court ordering the blood test must decide one of the ultimate issues: whether the child's best interests will be served by being declared illegitimate and having parental rights transferred to the biological father.

As to the privacy issues, we agree that the State can have a compelling interest in determining paternity in a proper case, and that a blood test can be the least intrusive means of advancing that interest. However, a compelling [**13] interest does not come into existence in the abstract but must be based on adequate factual allegations and a record establishing that the test itself is in the child's best interests. Absent that, the State's interest does not reach the threshold of being "compelling": The blood test thus would be an improper intrusion into the putative father's privacy, if he has properly asserted this right. n8 Art. I, § 23, Fla. Const. However, any such privacy claim is merely collateral to the overriding concern in the case: the child's best interests.

n8 It may be true that the putative father lacks standing to assert the child's presumption of legitimacy, but this means little. By asserting a privacy interest the putative father necessarily puts in issue the child's best interests, which substantially implicates the presumption. If the child's best interests require maintaining the presumption, then the presumption will prevail because the State will lack a compelling interest justifying the blood test. Art. I, § § 9, 23, Fla. Const.

[**14]

It may well be that, had certain facts been better developed below and proper procedures followed, the blood test would have been permissible here. We have few facts before us, but the record at least suggests that the child has been abandoned by the legal father and with its mother is living in poverty. If this state of affairs was properly established, the stigma of illegitimacy might well be outweighed by the child's need for support, especially in [*310] light of any abandonment by the legal father.

However, courts cannot guess at facts not properly developed, nor can they grant blood tests merely because HRS wants reimbursement. The failure here to appoint a guardian ad litem for the child, the failure to use proper procedures, and the inadequate record are each fatal to the trial court's order. Accordingly, the trial court's order was improper, and the decision reached by the district court below is approved. We disapprove Pitcairn to the extent it is inconsistent with our views here. This cause is remanded for further proceedings consistent with our opinion.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW and HARDING, JJ., concur.

GRIMES, J., dissents with an opinion.

DISSENTBY: [**15] GRIMES

DISSENT: GRIMES, J., dissenting.

It is ironic that a putative father is seeking to raise the presumption of legitimacy to avoid having to pay support for the child he is alleged to have fathered. As this Court stated in another context:

This presumption . . . was created to protect the welfare of the child. To now utilize this same presumption to deny this child support is to destroy the very reason for its existence. The welfare of the child demands that we recognize and honor not the fiction, but the underlying purpose upon which the fiction was created.

Sacks v. Sacks, 267 So. 2d 73, 76 (Fla. 1972).

The presumption of legitimacy is grounded upon public policy. However, for purposes of discovery, the legislature has established the public policy of Florida when it enacted section 742.12(1), Florida Statutes (1989), which provides in pertinent part:

In any proceeding to establish paternity in law or in equity, the court on its own motion may or upon request of a party shall require the child, mother, and alleged fathers to submit to Human Leukocyte Antigen tests or other scientific tests that are generally acceptable within the scientific [**16] community to show a probability of paternity.

Therefore, the putative father does not have standing in the discovery phase of litigation to raise the presumption of legitimacy in avoidance of the potential ordering of support. Pitcairn v. Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991).

Because section 742.12(1) reflects the public policy of requiring HLA testing in paternity actions, the only relevant argument advanced by Privette is his constitutional claim to privacy. However, it is well settled that where the intrusion is justified and the means and procedures respect standards of reasonableness, compulsory blood tests do not violate the federal constitution. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). To suggest that Florida's constitutional right to privacy permits a putative father to refuse a blood test in order to avoid the possibility of having to support his child offends ordinary principles of justice.

I do not dispute that at the final hearing the best interests of the child should be of paramount concern, nor do I suggest that the legal father [**17] should not have a say in this proceeding. However, at this stage of the litigation where the sufficiency of the complaint has not been challenged, the statute requires the taking of the HLA test, and there are no constitutional infirmities involved. I find it strange that in its effort to promote its own view of public policy, the majority makes it difficult to obtain the one test most likely to reveal the truth.

I respectfully dissent.

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