No Paternity? Your Right as a Father in Florida

In the state of Florida, a man is automatically considered the legal father of any children born to his wife while they are married. This is presumed based upon Florida Statute section 382.013(2)(a), which states that “if the mother is married at the time of [her child’s] birth, the name of… [her] husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” If you aren’t married and you have a child, however, there is a good chance that you won’t be identified as the legal father unless you take steps to ensure you are. There are many situations where this takes place, so it is important to understand your rights and fight for them for your own protection and that of your children.

The Five Ways to Establish Paternity

There are five ways to establish legal paternity in Florida. These include:

  1. Marriage: If a couple is married at the time of a child’s birth, paternity is automatically established, which was previously discussed and is defined by Florida Statute 382.013(2)(a).
  1. Court order: When paternity is not established at the child’s birth, neither by acknowledgment nor marriage, a judge may order paternity or support in court, which usually occurs after either side files a Petition for Paternity or a Petition for Child Support.
  1. Legitimization: Legitimization occurs when an unmarried couple later gets married after the child is born and updates the birth record to reflect such change. This language is set forth in 382.013(2)(f), which states that “If the mother and father marry each other at any time after the child’s birth, upon receipt of a marriage license that identifies any such child, the department shall amend the certificate with regard to the parents’ marital status as though the parents were married at the time of birth.”
  1. Acknowledgment of paternity: Lastly, if both parties acknowledge that the male in the relationship is indeed the child’s biological father regardless of marital status, the parents can sign an acknowledgment of paternity form which can result in an establishment of paternity.

Without Established Paternity Your Rights are Very Limited

Even if you are entirely certain that you are the biological father of a child, you will have very few real rights unless you are established as the legal father as well, which can be pursued by one the five above mentioned methods. Even if you have been a major part of the child’s life for years, you will still want to seek the legal status through a Final Judgment of Determination of Paternity or through a Final Judgment of Dissolution of Marriage where a Parenting Plan can be established. Otherwise, the mother may be able to cut off your rights at any point she chooses. While you will likely be able to restore those rights, it will take time, during which you will have virtually no involvement with your child’s life. Some of the different rights that many biological, but not legal, fathers mistakenly assume they have include:

Parenting Time – You do not have the legal right to parenting time with your child if you aren’t the legal father.

Input on Important Issues – Making important decisions such as what medical treatments a child should receive, where they should go to school, and others will be done exclusively by the mother if you haven’t established legal paternity.

Determine Location of Child’s Home – If the mother wants to take the child and move a long distance away, you can’t easily stop them without established paternity.

Smooth Custody Transition Upon Death of the Mother – If your child’s mother passes away unexpectedly, the state won’t grant you custody automatically. While you will likely be able to go through a legal process to gain custody eventually, it will take time and cause instability for your child during this difficult time.

Always Establish Paternity Right Away

The above rights that are lacking for fathers who haven’t been named as the legal father are very serious and can cause major problems. The one right that fathers in Florida do have, however, is the right to seek to establish paternity. If the mother won’t agree to go through the process voluntarily, you can petition the courts to demand the right to prove biological paternity and seek legal status as the father of the child. To start this process right away, please contact us and schedule a consultation today.

A special thanks to Trevor Youshak, Law Clerk at the Vasquez de Lara Law Group, for helping edit this blog.

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