Paternity

The legal definition of paternity is the acknowledgment or determination of a parental relationship between a man and a child. But in the eyes of the law, that relationship is not necessarily biological, as the person with the legal rights and responsibilities of fatherhood is not always the child's natural father. This apparent contradiction is based on the strong public policy of protecting the welfare of children by securing their financial support, even if it is sometimes at the expense of someone who is not the biological father. With the enactment of a new statute in 2006, Florida has made it easier for a man to be released from the legal duty to support a child not his own by allowing men to use newly-discovered evidence (DNA testing) to disestablish a prior court order of paternity. But the legal paternity of nonbiological fathers is still not uncommon on account of innocent mistake, negligence, or outright fraud, and the relief available under the new statute is subject to many conditions and restrictions and is limited to the release from future child support. The recovery of any past support payments is generally not permitted.

The law presumes that a child born to or conceived by a married couple is the child of the husband, even if the wife was known to be having an affair during the marriage. This presumption of the so-called legitimacy of the child is one of the strongest presumptions known to the law. It was created primarily to protect the interests of the child in receiving support from both of the child’s parents. But the presumption is not absolute. It can be overcome by clear and convincing evidence to the contrary. Yet there are some situations where the Court will not permit a challenge to the paternity of child born to a married couple either by the husband or other potential biological father of the child when to do so would be contrary to the best interests of the child, as where child’s biological father lacks the means to support the child. This is an extremely complicated area of family law and should not be handled by a party without the assistance of an experienced attorney.

Issues of paternity arise more often for children born out of wedlock. For this, there are two reasons. One is the increasing trend of children born outside of a traditional marriage. The other is the requirement of bringing a paternity action in Court in order to establish parental rights and obligations with respect to such children. Paternity is governed in Florida by Chapter 742 of the Florida Statutes. There is no legal presumption of paternity when a child is born out of wedlock. The father must first be identified by the Court, either by the agreement of the parties or based on the results of a DNA test, before the Court can properly allocate the rights and duties of the parties with respect to the children in the areas of parental responsibility, timesharing, and child support. For children born outside of a marriage, a paternity action is usually initiated by a mother seeking to enforce her right to receive support for the child from the man believed to be the father, and by the man who believes himself the father in order to enforce his rights of visitation and timesharing. Paternity must be established by the Court in these cases, even if the parties do not dispute it. A paternity action may also be brought by the state, on behalf of the mother, to seek reimbursement for public assistance benefits paid to the mother for the child.

An unwed man's name is not permitted to be reflected on a child’s birth certificate as the father without the consent of the mother of the child. The signing of a birth certificate or other sworn or notarized statement of paternity by a man does not in itself establish paternity, but only a legal presumption of paternity which can be rebutted, or overcome, with sufficient, contrary evidence. A sworn acknowledgment of paternity, whether on a birth certificate or other document, may be cancelled within sixty (60) days, but after such time, may only be challenged on the grounds of fraud, duress, or material mistake of fact. The latter means that both parties, and not merely the presumed father, were mistaken about the paternity of the child.

Since a presumed father’s right to cancel a sworn or notarized statement of paternity becomes more restricted after sixty (60) days, it is imperative that he refrain from signing such an acknowledgment if he has any doubts over his paternity. Even if he does not object to being the legal father to someone else’s child, he should still establish paternity through a DNA test to make sure the biological father won’t later assert his paternal rights. At the very least, a willing father who may be in doubt about his paternity should register with the Putative Father Registry. A mother cannot be compelled to submit to a DNA test to prove paternity before the child is born, but once the child is born, the mother can place it for adoption. A presumed father should act immediately to preserve his parental rights by registering if the child is unborn, and by filing an action to establish paternity after the birth, in the event the mother places the child for adoption.

A man who does not want to support another man’s child or who simply wants the certainty of knowing he is a child’s biological father should take action at the earliest stage to question his paternity. If heis married and in the process of divorcing his wife, he should request a paternity test in his divorce case. If he is unmarried to the woman whose child he may have fathered, he should immediately file a paternity action. In both cases, a simple DNA test is usually conclusive on the issue of paternity. Before the enactment of Florida Statute Section 742.18, a man generally had only one year from the date of a final court order establishing paternity to challenge it on the basis of mistake or fraud. Under this new statute, he can disestablish his obligations under a court order to support a child if newly discovered evidence, usually in the form of DNA test result, proves he is not the father and he took no affirmative action as the father after he become aware of the new evidence, such as adopting the child or consenting in writing to support the child.

A man who fathered a child outside of a marriage needs to be especially careful that an administrative order of paternity and support does not occur without his knowledge, as can sometimes happen. When an unwed mother receives any public assistance like welfare or food stamps on behalf of a child, the State of Florida Department of Revenue (DOR) is entitled to seek reimbursement for those benefits from the support owed by the child’s father. The DOR is empowered to initiate legal proceedings in the name of the mother of the child to establish paternity, and then to collect child support from the presumed father. Because the DOR can begin such proceedings by certified mail sent to the last known address of the person alleged to be the father, it is possible for someone at that address to accept this notice without the alleged father ever knowing it. The DOR can then obtain an order of support just like the one a court issues, but without the safeguard of personal service of process, which is required by a court. Unfortunately, the presumed father may not even know a final support order has been entered against him for a child not biologically related to him until years later. He is then faced with prospect of incarceration if he cannot establish he was truly innocent of misleading anyone by failing to object to his paternity earlier.

The consequences of an unfounded claim or objection on the issue of paternity are enormous for the mother, the child, the natural father, and the legally-substituted father. Receiving competent legal advice early in the process is especially crucial in this situation because the problem compounds so quickly if left untreated. Do not delay in seeking our assistance any possible issues of paternity could confront you.

This is probably your first time dealing with these important issues, but it certainly is not ours...