Florida Paternity Information
Posted in Florida Family Law on April 6, 2017
It takes two to tango and, as it so happens, two to make a baby. Identifying the mother – not an issue. Paternity is the legal process used to establish legal rights and responsibilities regarding a child. Most would think that being the biological father (the proverbial “sperm donor”) automatically gives him legal rights to the child, right? Not so fast. In fact, sperm donor status does not automatically give said donor the right to show up at mother’s house and demand time with the child. By the same token, it does not create a legal obligation to pay child support, yet. Legal rights and responsibilities of the biological father are established three ways: Marriage, adoption or a final judgment of paternity.
Child Custody of Children Born During Marriage
Despite popular belief, and rightfully so, biology and legal status do not go hand in hand some of the time. Here’s why: A child born during the marriage is the legal responsibility of the husband, regardless of whether he was there at the time of conception. In addition to the legal responsibility to support the child, he also enjoys (hopefully) the legal right to have a meaningful relationship with the child should the marriage end. Divorcing the non-biological father of a child born during the marriage, does not change his status as being the legal father. Yes, there are exceptions to every rule that our Florida child custody lawyers can address.
Children Born out of Wedlock
How are legal responsibility and rights established when the child is born out of wedlock? There is only one way on this earth to establish legal rights and obligations: a final judgment of paternity, period. A piece of paper signed by a circuit court judge that specifically states that John Doe is legal father of the child. Before a court can make that judgment, it must weigh the evidence and determine whether it is sufficient to establish that the person being “accused” of fathering a child did, in fact, contribute to the fertilization process. What evidence needs to be presented? What will satisfy the court? There are only two pieces of evidence used today to figure out whether John Doe is the biological and, therefore, the person with legal rights and responsibilities, of a child born out of wedlock. First, the alleged father can simply step up and admit it. A written, signed, sealed and delivered acknowledgement of paternity is an admission that the signer is the father and, unless revoked in writing within 60 days after signing, is about as conclusive as it gets. Signing the birth certificate is an acknowledgment of paternity and the most often used piece of written evidence. Show a judge a signed, notarized birth certificate or other writing and bingo – legal responsibility and perhaps legal rights. Second, DNA, used when there is dispute over whether John Doe should be given an “assist” regarding creation of the new bundle of joy, and is performed by swabbing the inside cheek of child and alleged father and sending to the lab for analysis. To paraphrase the late, great Johnnie Cochran, “if the DNA matches . . ..” An action to determine and establish legal responsibility and rights is called an action for paternity.
Who files a paternity action and why?
Paternity actions are filed by (1) the Florida Department of Revenue on behalf of the mother or (2) by the mother or (3) by the purported biological father. The Department of Revenue gets involved in two circumstances: (1) when mother goes to the child support office – a division of the Department of Revenue – and opens a child support case or (2) mother seeks public assistance; if so, a Florida child support case must be opened. Why? Because the public’s interest is to support those in need, as we should when there is a real need. If so, the public also has an interest in trying to make the biological father financially responsible to support his child. Here’s the thing that many people, including lawyers, don’t understand: a paternity action and final judgment of paternity in an action brought by the Department of Revenue only establishes legal responsibility to financially support the child, period. The hearing officer in a Department of Revenue paternity case does not have the authority and will not enter any orders establishing legal rights regarding parental responsibility or timesharing of the child. We get calls from fathers and mothers about this all the time: mother’s concern is that father is demanding that he be allowed take the child simply because he was ordered to pay child support. Her question: does she have to comply? Answer – no she does not. Father’s concern: he was ordered to pay and mother won’t let him see the child. His question: can he call the police and make her give him the child. Answer: he can call but police will not assist in getting him the child. Why? Because, the final judgment of paternity in the Department of Revenue case only obligates father to pay, period. So you know, even if the final judgment in the Department of Revenue case included provisions for timesharing, the police generally will not get involved with enforcement. They will tell either side to go to court and see the judge.
A paternity action can also be filed by mother – seeking to get child support against the father without benefit of the Department of Revenue – or by the purported biological father who wants to establish a relationship with the child and, hopefully, seeks to provide the necessary financial assistance to raise the child. Child support is part of every paternity case regardless of who files. That action is commenced by filing a petition to determine paternity in the circuit court. The judge will listen to the same evidence about biology – a written acknowledgment or DNA – income (necessary to calculate child support) and if the father participates if the action filed by the mother, evidence about how to deal with parental issues: responsibility and timesharing. After the hearing (final hearing/trial is necessary if the parties do not reach agreement at the court ordered mediation) the court will enter an order (1) establishing the father as the father (2) establishing a parenting plan – the legal right to see the child at specific times and (3) calculating child support in accordance with Florida guidelines and ordering the father to pay it. Remember, a case with the Department of Revenue does not establish a parenting plan.
What if I am found to not be the father?
What if I signed an acknowledgment of paternity, went to a final hearing and then find out I am not the father? If I had a nickel for every time I’ve been asked that question well, I’d have quite a few nickels. Here’s the thing: if, after a final judgment of paternity is entered, new evidence comes to your attention that you did not or could not reasonably ascertain prior to entry of final judgment, you may be able to do something; specifically, file an action to disestablish paternity and undo the final judgment. Keep in mind that there is nothing to disestablish unless and until there is an order establishing paternity in the first place, a fact many people and lawyers simply do not understand. Disestablishment after the fact is not easy and certainly not something to attempt on your own.
What does it all mean?
In a perfect world, children should have two loving parents who want nothing more than for them to be healthy and happy. Unfortunately, the world is not a perfect place though the health and happiness of our children is most important regardless. Making babies is simple; raising them not so simple. Fathers must be held accountable and mothers need to understand that a child is entitled to have both parents in their life. Parents may not get along but if they are both decent people, should always put the best interests of their child ahead of anything else. Rest assured that the judge assigned to your case will.
“When it’s time to leave (or file an action for paternity) . . . call Steve.”