Articles Posted in Paternity

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.

As a Jacksonville, Florida family law attorney, divorce, visitation and custody issues are part of my daily practice. Visitation and custody are usually emotional and working with a client on their parental demeanor is vital in moving forward and eventually going to court. When dealing with custody and visitation of a child it is important that the court sees that you are willing to cooperate with one another in an effort to look out for the best interest of the child(ren).
As of October, 2008, the Parenting Plan Statute went into effect with the purpose of countering bad behavior. The time-sharing and parenting statute requires all parents to file and have the court approve a parenting plan that lays out exactly how all issues of time sharing with the minor children are going to be handled. Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.
Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

1. Family Relationships
a. The kids having a great relationship with both parents
b. The kids having a great relationship with their extended families
c. Financial security for the children
d. Having a safe, secure home for the children
e. Having good schools for the kids
f. Providing for a college education for the children
g. Providing sports opportunities for the children
h. The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture.

a. Financial abilities of the parents
b. Parental/family member time available
c. What homes and schools are available and affordable
d. What the parents’ neighborhoods are like
e. The existing relationships between parents and children and the roles each parent plays with the children
f. What community resources are available
g. What special needs, if any, a child has
h. What interests the child has

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1088940_2_annual_reports__3.jpgPaternity cases and divorces in Florida have a standard of review by the court when children are involved, which is, “What is in the best interest of the child?” By changing things from “custody” to “time-sharing” and “custodial parent” to “majority time-sharing parent, “ the Florida legislature tried to help parents approach such subjects from a less adversarial position. As a Jacksonville divorce and family law attorney, I can attest to the fact that people seem to understand that visitation matters need to be addressed a little more openly, but it does not change the fact that parents sometimes want to fight over the time-sharing plan for many different reasons. That means that when parents disagree, which they often do, then the Court may appoint a parenting plan coordinator or social investigator to help them work out their differences.

The court, through Florida law, is allowed to appoint a parenting coordinator. The parenting coordinator will actually meet with the parents and the children to help determine what issues may be impacting the family, though a separated one. In so doing, the coordinator may be able to help the parents work through some of their issues that may be creating a communication challenge for them. Also, the parenting coordinator may be able to address issues with the children and parents that may have gone overlooked by the parents through the divorce or paternity action. There are psychological and emotional issues that can be associated with any type of family matter, the least of which is not divorce. The parenting coordinator is often trained in dealing with such matters and can help the parents and children reach a level of comfort with one another to express such issues. By doing so, the parenting coordinator may ultimately help the parties in reaching an agreement about the time-sharing and parenting plans that need to be filed with the court.

If the parents are in complete disagreement with one another from the beginning, the court may appoint a social investigator. The investigator’s role is to meet with the parents and the children. However, it is different from the parenting coordinator in that she/he actually interviews the parents and tries to seem each parent interact individually with the kids. Also, the investigator may employ psychological tools, evaluations to help determine any underlying issues the parents or children may have. Furthermore, the investigation may require home visits, which allows the investigator to see what the home life is like for the children and ultimately make a recommendation to the court based on all aspects of the investigation. If there are questions about the truthfulness of one or both parents, then the investigator may actually interview others and check up on the parents in their work-life, if it is deemed necessary. The investigation can help the court to better understand each household and to assess what type of time-sharing and parenting plan truly is in the best interest of the children.

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