Scenario: Father and Mother have a child. The child was born while her parents were not married. The Father’s name is on the birth certificate. Father and Mother break up. Mother does not want to allow Father to see his daughter. Father has not established paternity in any court action.
Question: Does the Father have parental rights with respect to visiting his child? Generally speaking, the answer is No.
Why is it important to establish paternity?
In Florida, unmarried fathers must first establish paternity in order to enforce their parental rights. Until a father establishes paternity, he will not be able to legally enforce his rights to his child. Having your name on the child’s birth certificate is not sufficient.
Until an adjudication of paternity, the mother is still deemed the natural guardian of a child born out of wedlock under Florida Statute §744.301(1). See Perez v. Giledes, 912 So.2d 32 (Fla. 4th DCA 2005); and In the Interest of S.M.H., 531 So.2d 228 (Fla. 1st DCA 1988). However, a father is on an equal playing field in terms of seeking time-sharing once he asserts his rights as a father by seeking an adjudication of paternity.
A primary purpose of establishing paternity is to identify the biological or “natural” father of a child born out of wedlock (a/k/a parents not married when child was born), and to require that the father provide support for the child while he or she is a minor.
So, how do you establish paternity?
In Florida, there are five ways to establish paternity:
- Marriage: The parents are married to each other when the child is born. In this case, there is a presumption that the Husband is the Father to the minor child.
- Acknowledgement of Paternity: The unmarried couple signs a legal document in the hospital when the child is born, or later.
- Administrative Order Based on Genetic Testing: Paternity is established by Administrative Order if a genetic test proves fatherhood.
- Court Order: A judge orders paternity in court.
- Legitimization: The Mother and natural Father get married to each other after the child is born and update the birth record through the Florida Office of Vital Statistics.
Establishing Paternity through Florida Courts:
Either the mother or father may file a Petition to Establish Paternity in Circuit Court. If paternity has not been established and the child’s guardian or mother requests government assistance for the child (i.e. Medicaid), the Florida Department of Revenue may file a Petition to Establish Paternity for purposes of child support.
1. Actions brought by the Florida Department of Revenue:
The Florida Department of Revenue is authorized to bring paternity actions to seek support by fathers of children born or about to be born out of wedlock. The Department brings these actions on behalf of individuals who are receiving government aid, and may also bring such actions on behalf of persons who are not receiving government aid if they make proper application for help in litigating paternity and support. See Florida Statute § 409.2567.
By accepting public assistance for a dependent child, a mother appoints the Department as her attorney in fact, and assigns to the Department any right to execute a complaint and institute a proceeding for the determination of paternity of the child, or the establishment, modification, or enforcement of support obligations. See Florida Statute §409.2561(2)(b).
Aside from establishing paternity, actions brought by the Florida Department of Revenue are for the purpose of determining child support. In other words, the Court will not enter an order regarding the parent’s decision making rights of the child; or an order awarding time-sharing with the child. The Department will establish paternity and then enter an order for the amount of child support to be paid by the non-custodial parent.
2. Actions brought by a Parent:
A mother who is pregnant or has delivered a child may bring a paternity proceeding to determine the paternity of a child born out of wedlock and to request support for that child, if paternity has not been otherwise established. See Florida Statute § 742.011.
Any man who has reason to believe that he is the father of a child may file a paternity action, unless paternity has been established by law or otherwise. See Florida Statute §742.011. Alternatively, a putative father (a man whose legal relationship to a child has not been established) may seek a declaratory judgment establishing the paternity of a child and adjudicating the rights and duties of the parties.
Resources & More Information:
The Florida Putative Father Registry was created to permit a man alleging to be the unmarried biological father of a child to preserve his right to notice and consent in the event of an adoption. Click here for the application to register: Florida Putative Father Registry Application for Search
To apply for services with the Florida Department of Revenue visit: Child Support Services
If you have questions about filing a paternity action, it’s best to ask a qualified family attorney. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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