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  1. #1

    Default How to Compel the State to Amend Scrivener's Errors in Deceased Father's Birth Record

    My question involves court procedures for the state of: Florida

    I seek to amend my deceased father's flawed Florida birth record. I am attempting to gain Spanish citizenship through a law passed by the Spanish Cortes in 2008. *In order to prove descent from my grandfather, a Spanish National, I must produce my father's birth certificate. *This law and any chance I have to acquire Spanish citizenship will expire December 27, 2011. I have received the official denial of my Request to Amend from the Florida Department of Vital Statistics. It states that it is against department policy to amend the birth record of a deceased individual. It is an impossibility "without a court order from a court of competent jurisdiction."

    When I initially requested a copy of the record, using my father’s true name and DOB, through the Florida Department of Vital Statistics, I was told that no record existed. After expanding the search criteria a birth certificate was found. *In this record, my father's given name is misstated. *He is listed as "Xxx Xxxxx". *His given name was, for the entirety of his life, "Xxxx". My grandmother's name is misspelled as "Nicolo" instead of the correct, "Nicolasa". *My father's date of birth is mistakenly listed as July 25, 1910. His true DOB was July 20, 1910.

    I have received the official denial of my request to amend from the DVS. It states that it is against department policy to amend the birth record of a deceased individual. It is an impossibility "without a court order from a court of competent jurisdiction."

    I possess:
    My father’s flawed Florida Birth Record.
    My father's original baptismal record(dated 1919, issued 1938) containing all correct information and bearing the seal of the Diocese of St. Petersburg.
    Certified copies of 1920 Federal Census records from the National Archives showing my father to be nine years old and living with my grandparents as "Xxxx".
    No child bearing the name on the Birth Record is listed.
    His US Department of State-issued Seaman's Passport containing all correct information, listing my grandfather as next of kin and my grandfather's address in Tampa as my father’s own.
    His US Department of Commerce-issued Seaman's Identification Document containing all correct information.
    My grandfather's Florida Death Certificate listing his address and my father as informant.
    My grandmother’s Florida Death Certificate listing her correct name.
    My father's Florida Death Certificate containing his correct name, date of birth and parents' names.
    My Florida Birth certificate.

    All records bear Federal, State or diocesan seals. All point to the fact that the record of my father’s birth is flawed on three points, his given name, his mother’s given name and his date of birth.

    I have spoken to several (6) attorneys. Four refused my case saying it was outside their expertise and they would not know how to proceed. Two offered to take my case contingent on a $7000 or $10,000 retainer, though they too stated they had no idea how to proceed. I am currently waiting to hear from a local legal aid organization re: assistance. I am not hopeful.

    How do I proceed pro se? I believe that I must file a Blank Petition in Family Court in the 13th Circuit Court of Florida, (Tampa)where said record was originally filed. Whom do I name as Responder? The FDVS, the Dept of Health, its parent organization, the Governor? To whom do I serve notice? Once given a case number, do I immediately file a motion to compel said action or wait for response from the State to my petition? When do I submit my evidence? Must I surrender original documents to the court?

    The amendment of this record will harm no one. My siblings and I will be irreparably harmed if it is not amended. My father has been dead 32 years. His birth occurred over 100 years ago. All I seek to do is to correct a flawed record already released by the State into the public domain.

  2. #2
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    Default Re: How to Compel the State to Amend Scrivener's Errors in Deceased Father's Birth Re

    There's a reason that you're being quoted $7,000 - $10,000 for this case - I expect that the breakdown is $5,000+ or so in legal research and the rest to litigate the case.

    Filing and serving a lawsuit is not the hard part. The odds of having somebody pass by here who has already done that $5,000 or so in legal research, or is prepared to do it for free? Pretty small.

    You do not file your original documents with the court when you file your lawsuit. You will likely end up using them as exhibits, but you would keep them in your possession.

  3. #3

    Default Re: How to Compel the State to Amend Scrivener's Errors in Deceased Father's Birth Re

    Thank-you for your reply.

    I suppose that I have a mistaken idea of the degree of legal research that this action would entail. As I wrote, I possess multiple original documents proving my underlying assertion. The applicable statute (FL382.016) addresses adult name change requested by the individual concerned and the legal name change of a minor. No direct mention of the amendment of deceased individual's records is made. The sticking point is that the signature of the individual whose record is to be amended is required by the DVS and obviously that is not possible in my situation.

    I have no issue with paying a fee for a service. I simply do not have $7000 to throw at this. I, luckily, have had no occasion to learn what access to the legal system costs.

    Anyway, I do appreciate your reply.

  4. #4
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    Default Re: How to Compel the State to Amend Scrivener's Errors in Deceased Father's Birth Re

    If you believe that the research is "no big deal", Florida's statutes are online, you can search a considerable amount of case law for free through sites like Google Scholar and LexisOne (and can purchase inexpensive research packages with more complete case law at any number of sites)... have at it.
    Quote Quoting Florida Statutes, Sec. 382.016. Amendment of records.
    The department, upon receipt of the fee prescribed in s. 382.0255; documentary evidence, as specified by rule, of any misstatement, error, or omission occurring in any birth, death, or fetal death record; and an affidavit setting forth the changes to be made, shall amend or replace the original certificate as necessary.
    (1) CERTIFICATE OF LIVE BIRTH AMENDMENT. —
    (a) Until a child's first birthday, the child's given name or surname may be amended upon receipt of the fees prescribed in s. 382.0255 and an affidavit signed by each parent named on the original birth certificate or by the registrant's guardian. If both parents are named on the certificate but both are not willing or available to sign the affidavit, the registrant's name may only be amended by court order.

    (b) Upon written request and receipt of an affidavit, a notarized voluntary acknowledgment of paternity signed by the mother and father acknowledging the paternity of a registrant born out of wedlock, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), together with sufficient information to identify the original certificate of live birth, the department shall prepare a new birth certificate, which shall bear the same file number as the original birth certificate. The names and identifying information of the parents shall be entered as of the date of the registrant's birth. The surname of the registrant may be changed from that shown on the original birth certificate at the request of the mother and father of the registrant, or the registrant if of legal age. If the mother and father marry each other at any time after the registrant's birth, the department shall, upon the request of the mother and father or registrant if of legal age and proof of the marriage, amend the certificate with regard to the parents' marital status as though the parents were married at the time of birth. The department shall substitute the new certificate of birth for the original certificate on file. All copies of the original certificate of live birth in the custody of a local registrar or other state custodian of vital records shall be forwarded to the State Registrar. Thereafter, when a certified copy of the certificate of birth or portion thereof is issued, it shall be a copy of the new certificate of birth or portion thereof, except when a court order requires issuance of a certified copy of the original certificate of birth. The department shall place the original certificate of birth and all papers pertaining thereto under seal, not to be broken except by order of a court of competent jurisdiction or as otherwise provided by law.

    (c) If a father's name is listed on the birth certificate, the birth certificate may only be amended to remove the father's name or to add a different father's name upon court order. If a change in the registrant's surname is also desired, such change must be included in the court order or the name must be changed pursuant to s. 68.07.
    (2) CERTIFICATE OF DEATH AMENDMENTS. — Except for a misspelling or an omission on a death certificate with regard to the name of the surviving spouse, the department may not change the name of a surviving spouse on the certificate except by order of a court of competent jurisdiction.
    How do you imagine that statute helps you?

  5. #5

    Default Re: How to Compel the State to Amend Scrivener's Errors in Deceased Father's Birth Re

    Hello again.

    I have no illusions regarding the degree of my legal knowledge. I do not believe that this statute helps me directly. This is the only Florida statute I have found that addresses the amendment of birth records. The first sentence of the statute seems clearly to set a path toward my goal. Since the amendment of records by descendants of deceased individuals is not addressed, I believed that this offered me an "opening". It is internal Department policy that is the stumbling block, not Florida law My father is dead. His signature on a form requesting amendment is unobtainable. I had hoped that as his heir I might have standing, for want of a better term, to request this of the State; that since this action would not harm the State or any individual, the correction of this 101-year-old document might be a simple matter; that since right of citizenship afforded me and my siblings by the Government of Spain would be irrevocably lost were the errors in this record to remain unchanged, I might be seen as justified in my request.

    I have pretty much given up on this. An attorney with the legal aid organization I mentioned above has advised me that given the caseload in the Circuit Courts and funding cuts, a minimum of twelve-to-eighteen months would be necessary to see this to its conclusion. He advised me that if I cared to pursue this that I must file in Tallahassee where the Florida Department of Health is headquartered. He told me that since I owned my own home(or 42% of it anyway) his agency could not assist me as I could not prove need. His consultation, as it was, was offered only because some in his office "felt for me."

    I have written to the Governor and the Surgeon General of Florida asking for their intervention. I hold little hope of even a reply. I have supplied the Spanish consular official in charge of this matter with all evidence of my father's identity and asked for special consideration of my situation. Again, I do not anticipate a successful outcome.

    I did not mean to imply that I considered legal research into this matter "no big deal". I believed, given the amount of evidence that I possess asserting my claim, that this would be a simple matter. Present it to a judge and receive an order. A laughable assumption, I have come to learn. I more than anyone wish that I possessed the time and the means to move forward with this.

    Thank-you again for your time.

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