Picture 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.
Once your girlfriend is divorced, there are a few more things to consider. If you plan to marry your girlfriend, there is provision under Fla. Stat. 742, that says if you subsequently marry a woman after a child is born, then you “ratify” the child and the court considers you the father of the child. If you do not intend to marry the mother, you still need to take action to ensure that your rights to having time with your child are protected. While many people prefer to avoid court, there may be avenues to explore for you both to agree to what will happen if you decide to break up.
Paternity is tricky area of Florida Family Law, and at the center of it all, is a child who is deserving of having both a mother and father in their life. Speaking to an experienced family law attorney about your specific facts is the only way to make sure that all the legal technicalities are navigated. Taking careful steps to ensure that you are granted the legal rights that you are entitled to, as early in the child’s life as possible, is essential to you building a strong relationship with your child.
The book titled – Florida Family Law – Enforcing Your Legal Rights & Rebuilding Your Life – has chapters on Divorce, Temporary Needs, Division of Marital Property, Division of Retirement, Alimony, Time Sharing, Parenting Plans, Child Support, and Enforcement. You can get this book for free at Florida Family Law Book.