What Rights does a Father have to his Child if Not Married to the Mother?
What rights does an unmarried Father have? Basically NONE. A Father has very limited rights to his child if unmarried to the Mother.
What if the Child has the Father’s last name? Does NOT matter.
What if the Father is on the Birth Certificate? Does NOT matter.
What if the Father is listed on the Putative Father Registry? Does NOT Matter.
Once the Child is born out of wedlock, the Mother is the only Natural Guardian of the Child. The Mother is automatically granted full rights as a parent, which includes:
- Primary Residential Care and Custody
- Ability to Relocate and move wherever she chooses; including out of State.
- Sole Parental Responsibility.
The Father has NO Standing until adjudication of Paternity, which means:
- He has no right to any visitation/time sharing.
- No Parental Responsibility.
How do I Establish Paternity?
When parties are unmarried and have a child, you will need to file a Petition for Paternity in Circuit Court and seek specific relief. Until the Court declares an unmarried man, the legal Father, he will not retain any of the rights that a married man is granted. Some of the relief requested in a Petition for Paternity could include:
- Determination of Paternity
- Delegation of Parental Responsibility
- Establishing a Time Sharing schedule
- Award or Child Support
- Establishing a Parenting Plan
- Change in child’s surname
- Request for Scientific Testing
If you are a man who is Father to a child without being married to Mother, you will need to be declared the Legal Father to obtain any rights to see your child or ability to have a say in how and where they are raised. Even though you have no rights to see your child or have any parental responsibility, the state of Florida can and will still come after you through the Department of Revenue to collect Child Support. The Department of Revenue’s only function is to provide support to one party; they do not have the ability to award timesharing.
An example of something that can and did happen: an unmarried Father was living with his child and the Mother of the child for the child’s entire life, 6 years. The parties then have another child and once that child reached 6 months old; the parties broke up and the Father moved out. The Mother was upset of the relationship ending and blocked his phone number. He was unable to see either of his children for over 3 months, until he hired me.
No one thinks they need to be protected and be adjudicated the legal Father while still in a relationship with the Mother. But doing so, protects your ability to see your child, if the relationship sours with the Mother. If you are in a similar position, please contact or call my office to schedule a consultation to discuss all of your rights.
Paternity can also be established under Chapter 742 once:
- Established by the statutes governing inheritance, or dependency under worker’s compensation or similar compensation programs;
- Affidavit acknowledging paternity or stipulation of paternity is executed by both parties and filed with the Court;
- Affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgement of paternity that is witnessed by two individuals and signed under penalty of perjury is executed by both parties; OR
- Paternity is adjudicated by the Department of Revenue.
Paternity can also be established, if you have a child out of wedlock and then marry. The Father/Husband is then presumed to be the Legal Father of the minor child.
The Husband of a Mother of a Child is presumed to be the Child’s Legal Father.
The presumption of legitimacy is a rebuttable presumption which is difficult to overcome, due to being based on the welfare and Best Interest of the Child. A child born of an intact marriage have a right to maintain that status and the legal Father has the right to maintaining said relationship. Florida Courts will only recognize ONE Father; therefore, only ONE man can be recognized as the legal Father.
What if the Legal Father is NOT the Biological Father?
The Biological Father can request a DNA Test. Prior to the Court granting such a test; they are required to hear argument from all the parties, including the legal Father and Guardian Ad litem (representing the Child). The Court will conduct a Privette hearing where the movant party must prove by clear and convincing evidence all of the requisite factors: the complaint is accurate factually, brought in good faith, likely to be supported by reliable evidence, and that it is in the child’s best interest will be better served even if the blood test proves the child’s illegitimacy. At that time, even if the legal Father is proven NOT to be the biological Father, the Court must rule that there is a Clear and Compelling Reason why it is in the Best Interest of the Child to overcome the presumption of legitimacy of the legal Father.
As the biological Father, how can I fight to be the Legal Father?
A biological Father can seek to establish Paternity if, common sense and reason are outraged by barring said action. There is a time bar on when the biological Father may bring this action to the Court. If the Court rules that there is no competent, substantial evidence regarding a presumption of legitimacy, a Court can order scientific paternity testing (DNA test). The presumption of legitimacy by the legal Father can be overcome with a showing of competent, substantial evidence that it is the Best Interest of the Child. If you are dealing with a situation like this, you will need expert representation that I can provide you. Please call or contact my office to schedule a consultation.
Where do I File to Establish Paternity?
The proceedings shall take place in the County where either the Petitioner or Respondent reside. If the venue for the Court to hear this case is in more than one county, the Petitioner may choose the venue. The Petition must allege the dates and time periods during which the alleged relations occurred, or whether the Mother had sexual relations with other men during the alleged time period. Respondent must be served personally unless already the Legal Father, then can be served through Constructive Service.
What if I am not sure that I am the Father?
The first step is to file a Motion for Paternity Test (DNA test). If the Motion is granted, the Order must state:
- Any objection to the test results MUST be made in writing and filed with the Court at least ten (10) days prior to the scheduled hearing.
- If NO objection is filed, the test results shall be admitted as evidence without the need to lay a predicate or third party testimony.
If the parties file an Affidavit of Acknowledgment of Paternity, and it is not rescinded within 60 days, then the Court shall not order a paternity test, unless:
- Shown to be in the Best Interest of the Child OR
- On the basis of fraud, duress or material mistake of fact.
Can I Disestablish Paternity?
A man CAN Disestablish Paternity under certain circumstance, which can lead to a termination of a child support obligation. The man must first file a Verified Petition for Disestablishment of Paternity in Circuit Court. The Petition MUST include the following:
- Newly discovered evidence relating to the Paternity of the child has come to the Father’s knowledge since the initial Paternity determination or the establishment of Child Support;
- Scientific testing results, within 90 days prior to the filing of the Petition, which indicates the man CANNOT be the Father of the Child OR
- Must state did NOT have the access to the Child to have scientific testing performed prior to the filing of the Petition.
- If a man does NOT have access to the child, he may file a Petition requesting the Child is tested.
- Stating that he is current on his Child Support obligation or that he has substantially complied with his Child Support obligation and that any delinquency is due to his inability to pay.
The Court shall Grant Relief and Disestablish Paternity if all of the following is found:
- The newly discovered evidence relating to the Paternity of the child has come to the Petitioner’s knowledge since the initial establishment of Paternity or Child Support obligation.
- The scientific test was properly conducted.
- The man is current on his Child Support obligation or has substantially complied.
- The man ordered to pay child support has NOT adopted the Child.
- The Child was NOT conceived by artificial insemination while the man ordered to pay child support and the child’s Mother were in wedlock.
- The man 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.
- The Child was younger than 18 years old when the Petition was originally filed.
The Court shall NOT Grant Relief and Disestablish Paternity if the man engaged in the following conduct AFTER learning he is NOT the Father of the child:
- Married the Mother of the Child and voluntarily assumes the parental obligation and duty to pay child support;
- Acknowledged paternity of the child in a sworn statement;
- Consented to be named as the child’s biological Father on the birth certificate;
- Voluntarily promised in writing to support the child and was required to support the child based upon that promise;
- Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; OR
- Signed a Voluntary Acknowledgement of Paternity (as outlined above).
If you have newly discovered evidence that makes you question the authenticity of your parentage; please contact my office to schedule a consultation.
What is the Putative Father Registry?
A Putative Father is an individual who is or may be the biological Father of a child whose paternity has NOT been established and whose mother was unmarried when the child was conceived and born. The Putative Father Registry is for an unmarried man to document with the State, that he is the biological Father of a minor child. That ill preserve his right to be noticed and ability to consent or lack consent for an adoption of the minor child. This confirmation also comes with the intent and willingness to financially support the minor child. If you have not filed a Petition for Paternity, ordered to pay child support, or register with the Putative Father Registry; then the minor child could be adopted without your knowledge or consent. It is imperative that if you believe a situation like this could occur, contact or call my office to schedule a consultation to discuss your options.
With offices in Ormond Beach and Daytona Beach, the Frankel Law Firm provides clients throughout Volusia and Flagler Counties with exceptional legal services in all aspects of family law. The firm's areas of expertise include jurisdictional divorce issues; marital property characterization, valuation, and division; spousal and child support; child custody cases; paternity matters; adoptions, and prenuptial, postnuptial, and marital settlement agreements.
120 E Granada Blvd., Suite 203
Ormond Beach, FL 32176
(386) 317 4641
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