Although a child may have only one legally recognized father, a biological father is not always recognized as the legal father. When a child is born to a married woman, the husband is presumed to be the legal father with all the rights and obligations of parenthood. Although the husband is often the biological father, that is not always the case. For instance, when a woman has an extramarital affair that results in a child being born during an “intact” marriage, the husband will still be presumed to be the legal father despite the fact that he is not the biological father. Such a presumption is based on public policy that favors legitimacy of children.
Florida Statutes further provide how when the mother is married at the time of birth, the name of the husband must be entered on the birth certificate as the father of the child. See Section 382.013(2)(a), Florida Statutes (2014).
If the husband does not want the obligation of raising that child, the husband may pursue a disestablishment of paternity action under Chapter 742 of the Florida Statutes. However, this option is available only under certain narrow circumstances, as specified in Section 742.18, Florida Statutes (2014). Also, the husband must be very careful to not take certain actions that may constitute a waiver of his right to disestablish paternity.
However, what if a child is born to unwed parents who after the birth of the child or sometime thereafter end their relationship and go their separate ways? Does the biological father still have the right to be a part of his child’s life and spend time with the child, care for the child? Unfortunately, for an unwed father, that is not the case. Even if the unwed father signed the birth certificate, that unwed father is still not afforded enforceable rights to time-sharing (visitation) and decision-making. Although an unwed father is not automatically bestowed with enforceable rights to his child, the birth of the child does create an obligation for the unwed father to financially support the child.
Quite often when the parents are still together or are still on friendly terms after the breakup, both parents tend to participate in raising the child, making decisions for the child. However, the mother is under no legal obligation to allow contact between the father and the child. If the mother decides to move for employment or family support, she may do so without any notice to or consent from the biological father.
If the unwed father wants contact with and decision-making authority over his child, the unwed biological father would have to commence a legal proceeding under Chapter 742 of the Florida Statutes. The proceeding is called a paternity action and is commenced with the filing of a petition to determine paternity and for related relief. Paternity actions generally progress similarly to a divorce action but their focus is limited to issues related to the child. This means that a final judgment of paternity would establish paternity, of course, and would also establish a parenting plan with time-sharing schedule, as well as award child support, if child support has not already been addressed by the Department of Revenue.A final judgment of paternity also addresses matters of health insurance, unreimbursed medical expenses, day care expenses, tax exemptions and name changes, if a name change was sought in the petition. Once such final judgment is entered, the mother may not simply leave with the child without notice to the father, as the final judgment provides formal recognition to the unwed biological father as the legal father of the child. Both parents are then under a legal obligation to parent pursuant to the terms of that final judgment.
There is also a misconception that when the Department of Revenue establishes child support, that order on child support has the same effect as the order of paternity. That is not the case. The Department of Revenue does not address issues of time-sharing (visitation) and decision-making.
Therefore, if an unwed biological father wishes to establish his parental rights, his must pursue a paternity action.
Consequently, for a man to be recognized in Florida as the father of a child, biology is not always the deciding factor, especially in light of the predominant public policy that favors legitimacy. Hence, a man should not simply assume that he is the “father” of a child. Even if a man fathered a child, another man may actually be recognized as the legal father of the child with all the rights and responsibilities of parenthood or, where there is no other man that is bestowed with the rights and obligations of parenthood, the biological father would still have to take extra steps to be recognized as the legal father who has rights to the child apart from an obligation to financially support the child. These extra steps generally involve moving forward with a legal action to establish paternity.