Articles Posted in Paternity

paperfamily-300x169Splitting up with your partner while having kids is one of the most challenging and grueling experiences that a person can face. Some partnerships do it beautifully, and can get past the differences that each adult may have with one another, and rather, can turn a broken relationship into a cooperative co-parenting structure that puts their children first.  But not all relationships are built equally, and not all personalities can work together past separation to effectively co-parent together.

When couples decide to split, the issues of child rearing become central to the disagreement between the parents.  Topics as simple as haircuts, sleepovers, and extracurricular activities can be a warzone between parents who are trying to gain control, or maintain their parenting structure.  To consider agreeing on larger issues like timesharing, religious decisions, medical choices, and education, seem like an impossibility.

The Florida Supreme Court has provided Forms 12.995(A-C), that are  fill in forms for parents to use in drafting their Parenting Plan for their children.   Form A, is the standard form when there is not a safety risk for children.  Form B is the form used by parents that have safety concerns based on domestic violence or other dangerous conditions that may require a parent to have supervised visitation or other safety measures for the child.  Finally, Form C, is the appropriate form to use when one parent is relocating to an area that will require specialized visitation structures, which is usually more than 150 miles from the child’s home.


Every parent has an ongoing responsibility to support their child.

All parents have to work together to raise their children to the best of their ability.  There are times of joy and also times of struggle.   Raising a special needs child presents its own victories and challenges, and parents find themselves in many cases with not only having the same pressures that every parent faces, but increased medical expenses, educational costs, and other specialized factors that cannot be imagined in a routine, typical budget.

When you and your co-parent decide to split, either by divorce or paternity action, there are also special considerations that you need to think about when planning how things will work moving forward.   Typically, child support is determined using five factors: the income of the Mother, the income of the Father, the number of overnight time-sharing that each parent has with the minor child, who pays for day care, and health insurance costs.   But, when your child has medical or psychological needs that are significant, Fla. Stat. 61.30 has several avenues for parents to ensure that the financial needs of the child are going to be met for the long term.     Discussing your child’s mental or physical needs with an experienced attorney is important in the proper calculation of the amount and term of child support for your child.    The attorneys at Wood, Atter, & Wolf, P.A, have represented parents of special needs children in determining if a child support increase, extension beyond the age of eighteen (18) years old, or other factors that may impact the provision of care to special needs children after parents have separated.

Paternity-Fatherhood-Florida-Law-300x189Learning that you are expecting a child is one of the most exciting and life changing moments that parents experience.   Between the planning and wonder of what this new life will bring to your life, parents are on a roller coaster from the beginning.    In cases where the parents are not married and remain together, it seems like the perfect setting as you embark on a new aspect of your relationship.   In some instances, the years pass, and the couples stay together, as if just like married couples, raising their families and sharing in the memory making moments.   In others, just like married couples, the struggles of daily life and raising children take their toll on the central relationship between the parents and break ups occur.

We are faced in many cases where new fathers come in asking about their parental rights at various stages in the process of both expecting and raising their baby.    In Florida, if you are not married to the mother, Chapter 742, Florida Statutes, contains the state laws on how fathers and mothers can establish the rights of the Father.  Even if you have signed the birth certificate for your child, this act does not convey rights for decision making or timesharing to your child.  Many fathers are unaware that they need to take legal action to formally establish their rights as a father beyond just signing the birth certificate.    In many instances, we are asked when should I do that? Should I file paternity even if the mother and I are living together and raising our child together?

Our answer is simple.   You should file to establish your parental rights as soon as possible to the child’s birth, regardless of the living situation with your child’s mother or father.   This is important to establish your rights as a parent both moving forward with raising your child together and in case, your relationship breaks down.   In these situations, establishing yourself as a parent, or establishing the father’s rights, while you are still living together should be welcomed by both parents.   As a follow up to our answer, we often are asked, “but doesn’t that mean I will have to pay child even if we are living together?” The answer is no, you can establish your parental rights, and determine decision making responsibilities between yourself and the other parent while you get along so that should the parties break up, you already have the process started, and you can quickly modify your already existing paternity order to include timesharing and child support, while also maintaining consistency for your child.

Florida-Paternity-Laws-156x300Picture this…you and your girlfriend recently found out that you are having a baby. Not only that, you also find out that your girlfriend is not technically divorced from her husband. Does that cause problems for you as a unmarried father? In Florida, the answer is clearly “YES.” In Florida, the paternity law is clear that when a woman is married and pregnant, even if she has filed for divorce but the judge hasn’t signed off on the divorce, her husband is presumed to be the father of the child, also known as the “legal father.” Where does that leave a biological father as to his rights for paternity and parenting a child?

As an unmarried biological father, you must take action by either filing for establishment of paternity or answering any action to establish paternity. The responsibility is now shifted to you to demonstrate that you are the actual father under the law, through DNA testing, for you to establish your rights to your child.   This can be accomplished by filing a Florida Petition for Establishing Paternity, where you would have to start a lawsuit against the mother of child, not only asking to establish paternity, but also timesharing and child support for the child.

Another avenue to explore is to make sure that your current girlfriend includes the child in her divorce, informs her husband of the new baby, and have them agree that he is not the biological father of the child. This can be done in a variety of ways, such as an Affidavit of Non Paternity. Then, when they get divorced, the final decree will explain that while the mother is pregnant or has had a child during the marriage, the husband is not the father of the child. This will excuse the presumed, legal father from any responsibility or rights to the child, but it does little to establish your rights as the parent of the child.


In the practice of family law, there are common questions that are posed to an attorney on a regular basis.  One such question applies to birth certificates and the establishment of paternity.  In summary, the entry of the father’s name on the birth certificate (by itself) does not establish paternity as a matter of law in the State of Florida.

But I’m on the birth certificate……

As a Florida family law lawyer, I receive many phone calls from fathers who want to spend more time with their children but are not permitted to do so by the mothers. The fathers always ask what rights they have because it seems the mother has all of the rights regarding the children. My standard question to their question is whether the person on the phone has been deemed the father or married to the mother when the child was born. Without fail, the response to my question is “I signed the birth certificate.”

divorce-300x216The Florida Statute governing child support is 61.30. This statute covers in great depth the child support laws in Florida. The statute covers the base level of financial support for each child support obligation based on the household income and also explains in great depth how child support should be calculated for an after born child. Child support is calculated by taking the combined monthly income of both parties and factoring in day care costs, health insurance costs, prior support orders in effect, and few additional factors are also considered. In the instance that a parent has an existing ordered child support obligation and then have a child subsequently born the initial child support obligation for the first child’s benefit will NOT be lowered due to the birth of the second child.

The legislature created this statute in order to prevent a child born before another from being ripped of the support that they were awarded. While the operation of this law may not always have the effect of the birth order taking precedence this is referred to the prohibition of a downward modification as a result of an after born child. The statute does not operate in terms of birth order; instead the operation is in terms of the chronological sequence of judicial orders. Therefore, if a client has a 12 year old son, and he has contributed to the support of this child without a judicial order in place, if the man then has another child and he is ordered to pay child support regarding the second born child, the court is not to consider the amount of support he voluntarily gives the 12 year old child in the initial calculation. The court can take into consideration the older child to support a downward departure from the child support calculation.

If we revisit the previous scenario and the parent was paying child support to the 12 year old in furtherance of a child support order then then second born child’s support amount would be calculated by taking the parent’s income and deducting the amount of child support already paid to the 12 year old THEN calculating the support amount. There are numerous benefits to having a child support order in effect for a parent who is receiving support. The order would solidify the support obligation, allow for a child not to have their support amount reduced by an” after born” child, and it would allow for a calculation of arrearages if support is not paid.

In Florida, the mere establishment of paternity does not create rights for the biological father. Fla. Stat. 742.10 provides that paternity can be established by the filing with the Clerk of Court of an affidavit of paternity signed by both parties, by submitting a notarized voluntary acknowledgment of paternity, by signing an acknowledgment of paternity in the presence of two attesting witnesses, by adjudication with the Department of Revenue, or by establishment through establishment by the judiciary. While unwed fathers have means available to establish paternity there is a secondary step necessary establish parental responsibility and timesharing. Establishing parental responsibility and timesharing opens the gate for the adjudicated father to have equal rights with the mother to make decisions regarding the child’s education, healthcare, and religious upbringing. Whereas establishing timesharing implements a schedule for which the father is entitled to spend time with the child. I have seen too many instances in which father’s believe that they have parental responsibility and timesharing rights simply because they pay child support. It is essential that the unwed father protects his rights and advocate for timesharing in a set schedule with his children.

1198667_dad_day.jpgIn recent years, the rules and laws regarding paternity actions in Florida have changed. Paternity cases generally establishes a father’s parental rights to a child in Florida; however, if the paternity case is brought by the Florida Department of Revenue those rights are limited to, basically, paying child support. In prior years, fathers were able to file a counter-petition in the Department of Revenue case and request time-sharing/visitation and even custody, and request to have parental rights shared by the mother and father to make decisions regarding the child’s life. Filing a counter-petition basically saved the father money because the filing fee is less and it consolidated the cases into one so as not to have to attend multiple hearings on the same issue. Recently, the ability to file a counter-petition in a Florida Department of Revenue case against a putative father was banned. So, how do you establish your parental rights when the State of Florida is only filing an action to establish your child support obligation?

To give some background, signing a birth certificate as the “father,” does not automatically give that person parental rights to the child, if the mother and father are not married when the child is born. Signing a birth certificate gives the presumption that the person that signed is, in fact, the father. However, the rights to the child have to be established by a court. If the father does not do that, and later the mother files for any type of government assistance, then the State of Florida may file an action to establish paternity and child support for the benefit of the child.

The State of Florida’s interest in filing an action to establish paternity is based on a financial need of the State and not public policy for children to have a father. If a mother is requesting government assistance, like Medicaid for the child, then the State has a right to look at whether another person has a financial obligation to the child and possibly has an ability to provide health insurance for the child. Therefore, the State will request that the mother give a list of all possible fathers of the child. After that application is completed, the State of Florida on behalf of itself and the mother, will file a paternity action against the possible fathers. A DNA test will then be requested to establish the biological father. The case will then move forward with regards to that one individual and the State will only request child support be established.

282848_law_library-1.jpgIn a Florida divorce, post divorce or paternity case, there may be times the case is referred to a general magistrate instead of the judge. Often, a general magistrate’s calendar is more accessible than the judge’s calendar due to volume of cases. The magistrates have the power to listen to cases and make a ruling based on the evidence presented, which then must be provided to the judge before being entered as a court order. Therefore, the judge still has control over the case, but the magistrate is helping move the cases along.

A referral to a magistrate is generally done for temporary needs hearings, which is when a party is requesting a temporary order be entered with the court until the final hearing so that each party has what s/he may need to get to a final hearing, like child support, alimony, or use of the home. The reason is that the judge may not be able to get the parties in for a longer period of time and the magistrate can generally see them in a couple of months. It is also common for the case to be referred to the magistrate when a lawyer does not represent one or both parties.

How does a case get referred to a general magistrate? When certain documents or motions are filed with the court, the court may tag them to be referred to the magistrate instead. For example, when a party files a Motion for Temporary Needs, the judge may sign an order referring the case to the magistrate’s office. When that happens, both parties receive a copy of the order and have ten (10) days to object to the transfer. In Florida, use of a magistrate has to be by consent, so if one party objects, then it will not go to the magistrate but must be heard by the judge instead. This may mean that the hearing is postponed for a time to correspond with the judge’s calendar.

Written By: Lenorae Atter, Attorney

1205795_father_and_son.jpgEstablishing paternity in Florida can and normally does require that both parties participate in DNA testing of the child and presumed father. The reason for DNA testing is to know with certainty that the father is actually the biological father of the child at issue. Not having the DNA test can lead to additional court action down the line if biological findings later show that that the individual that was ordered to pay child support and established a relationship with the child is actually not the father. Therefore, when an action to establish paternity is brought by either the potential father, the mother or the Department of Revenue on behalf of the mother, then the court will most likely order DNA testing.

The Department of Revenue may bring an action to establish paternity and child support and they normally do so if either the mother asks for such assistance, or if the mother applies for government assistance for the child’s benefit. Before the State will allow for a child to get on government assistance the State may require that paternity be established so that the biological father of the child can actually assist the child instead of the state. The Florida Department of Revenue may ask the mother to fill out forms to show who the potential father or fathers may be and the State may then take action in filing a petition to establish paternity against those listed.

Contact Information