In Florida, when a mother is married and gives birth, the law assumes the child’s father is the mother’s husband. But when the mother is unmarried at the time of the child’s birth, paternity must be established, either voluntarily or through a court order.
If the mother and alleged father agree on who the child’s father is, they can sign a “Voluntary Acknowledgment of Paternity” form. This can be done before or after a child is born and it is used in situations where the child’s parents are not married. An Acknowledgment of Paternity document assumes that the man who signs the document is the child’s father and therefore has parental rights over the child.
When the parents sign this document, they are acknowledging that the man signing the form is the child’s legal father and swearing under oath that the information is true. The acknowledgement becomes final 60 days after it has been signed. After the 60 days elapses, neither parent can revoke it. If either parent wants to revoke it, he or she must prove in court that there was fraud or extreme force was used to get the parent to sign.
By signing this form, both of the parties are stating under oath that the supposed father is the child’s true legal father. Signing this form gives the father all the legal rights and responsibilities that come with being a father, including the rights of visitation, having a relationship with the child, and decisions in raising the child. It also comes with the responsibility to provide support for the child’s needs.
If there is no voluntary acknowledgement, and the parties do not agree on paternity, either the mother or the man who believes he is the father may go to court to establish paternity. Although a paternity case can be started before the child’s birth, the court cannot enter any final orders until after the child’s birth.
Under Florida statutes, a paternity action can be started by:
- The mother of the child;
- The alleged father;
- A legal representative acting on behalf of the child; or
- The Florida Department of Revenue (for purposes of establishing child support only – not for parental responsibility or visitation – this must be done by court order.)
Differences Between Legal and Biological Paternity
It is important to understand that there is a distinction between the biological father and the legal father of a child under Florida Law, as they may not be one in the same person.
The biological father of a child is the man who actually fathered the child.
The legal father of a child is the man recognized by the court as the child’s father. He has all the legal rights and responsibilities for the child – whether or not he is the biological father. The legal father is established by marriage, adoption, or court ruling.
When the mother of a child is married at the time of the child’s birth, her husband is presumed to be the legal father of the child. This is true even if the parties were not married at the time the child was conceived. (If the mother becomes pregnant while unmarried, and then marries a man prior to the birth of the child, then that man is the legal father of the child, despite who the biological father is). Further, the husband is presumed to be the legal father, even if the wife was known to be having an affair during the marriage.
If another man believes that he is the biological father, he can bring a paternity action to become the legal father. If the judge decides that it is in the best interests of the child for the non-biological father to remain the legal father, then that will be the outcome (subject to appeal).
What if the Man Learns Later that He Is Not the Biological Father? (Disestablishment of Paternity)
Unfortunately, sometimes parents are not always upfront or honest with each other about paternity. For example, a mother tells a man that he is the biological father of her child. As a result, the alleged father agrees or is ordered to pay child support. Later, the mother tells the man that he is not actually the biological father. The man is now paying support on a child that is not his own. Can anything be done about this?
Fortunately, Florida statutes do provide a way for someone to challenge a finding of legal paternity. Doing so successfully, though, is difficult, and it is important to know that any prior actions, comments, or conversations the alleged father made about the child can be considered admissions of paternity.
To disestablish paternity in Florida, you must file a Petition to Disestablish Paternity with the court. This petition must strictly comply Florida Statute 742.18. The legal father must file this document in the appropriate circuit court that has jurisdiction over the case.
If the petition is successful, the court will enter an order declaring that the man is not the legal father of the child and that he does not have any obligation to continue paying child support.
As part of the initial filing, the legal father must include:
- An affidavit (sworn statement) explaining that newly discovered evidence regarding paternity has come to his attention since the time that legal paternity was first established. The new evidence can be things such as: DNA test results or statements made by the mother or others about the actual paternity of the child. It is important to note that this “evidence” must have been discovered after the finding of legal paternity. It cannot have been known prior.
- The results of a DNA testthat show that the legal father is probably not the biological father of the child; or an additional sworn statement saying that he was not able to obtain a DNA sample from the child; or the father can also request the court to order the DNA test.
- Child support paymentsmust be current, or be “substantially complied” with making child support payments on time. This must also be sworn to by affidavit. If there are past due payments owed, the affidavit must explain why the payments are past due.
If the statute has been followed and the petition properly filed, the court should grant the legal father’s petition for disestablishment of paternity, thereby dismissing the finding that the man is the legal father of the child and is obligated to pay child support. In addition to the above requirements, the Court must also find that:
- The legal father has not adopted the child.
- The child cannot have been conceived by artificial insemination while the legal father and mother were married.
- The legal father did not prevent the biological father from asserting his rights.
- The child was under 18 years old when the petition for disestablishment of paternity was filed.
However, the Court may deny the petition, even if the legal father properly filed the petition for disestablishment and followed all the necessary steps, if the Court finds that the man:
- Married the mother of the child and represented to others that he was the father of the child;
- Made a sworn statement indicating he was the biological father;
- Allowed himself to be named as the biological father on the child’s birth certificate;
- Signed a voluntary acknowledgement of paternity; or
- Ignored or disregarded a notice from the court or a state agency asking him to submit to a genetic test.
As you can see, establishing or disestablishing paternity in Florida can be a time-consuming, confusing, and complicated process. Seeking the assistance of an attorney is recommended if you or someone you know is facing this issue.
Our firm has experience in handling these matters. Should you have a question or concern, one of our attorneys would be happy to answer any of your questions. Call us at (813) 534-0393 or email us at firstname.lastname@example.org.
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