Florida Family Lawyer Blog

Many children in South Florida are born out of wedlock, and it is important for unmarried mothers and fathers to protect their legal rights. In this series of blog posts, we will explain the legal problems that unmarried mothers and fathers in Miami and Fort Lauderdale face everyday. Specifically, these blogs will cover: (1) how an unmarried father can obtain legal parental rights, (2) how a father can establish paternity and prevent the unmarried mother from placing the child up for adoption, (3) how a mother can obtain child support from the father when the parents are not married, and (4) what a man should do if a default support judgment is entered against him and he believes he is not the child’s biological father.

The family law attorneys in our Fort Lauderdale and Miami offices often receive calls from unmarried fathers who mistakenly believe they have parental rights because their names appear on the child’s birth certificate or because they have taken financial and emotional responsibility for their child. Florida law differentiates between paternity and parental rights—signing a birth certificate may establish paternity and the obligation to pay child support, but unmarried fathers must establish their parental rights by obtaining an adjudication of paternity from the courts.

If a father is not married to the child’s mother at the time of the child’s birth or conception, he must petition the court for an order granting parental rights. Establishing parental rights gives an unmarried father the legal right to: (1) seek a court order for visitation rights, (2) request a change or modification in custody, (3) request child support if he has custody of the child, and (4) be involved with important decisions that concern his child, including choices regarding their schooling, medical treatment and religious upbringing.

Even if an informal custody arrangement between unmarried parents works in the short term, obtaining a formal court order is in the best interests of both the father and the child. Without this type of order, the father does not have a legal right to intervene if he disagrees with the mother’s decisions. If an unmarried father is not listed on the child’s birth certificate or registered with the Florida Putative Father’s Registry, the child’s mother has the legal right to place the child up for adoption without the father’s consent.

If you are an unmarried father in the Broward, West Palm Beach or Miami-Dade area, the family law attorneys at Koch & Trushin can help you obtain parental rights over your child. Please feel free to contact us for a free initial consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Establishing Paternity

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In Florida, paternity may be established through statutory action governed by the Florida Family Law Rules. Pursuant to Florida Statute, any woman who has a child out-of-wedlock may bring proceedings against an alleged biological father in one of Florida’s circuit courts to establish paternity. In this action, the mother must assert facts demonstrating paternity. Chapter 742 of the Florida Statutes dictates that paternity must be established by clear and convincing evidence either through the father’s open acknowledgement via sworn affidavit or through scientific tests that are generally acceptable within the scientific community to show a probability of paternity. If the mother successfully alleges facts establishing paternity, and the circuit court determines that alleged biological father is, in fact, the real father of the child, upon its discretion, the court may order the father to pay child support. In such a situation, the mother most likely will demand retroactive child support—that is, monetary support owed for previous years of unpaid child support. While the state of Florida allows the courts to award retroactive child support, the Legislature has placed severe limitations on just how far back the court is allowed to go when granting such an award.

While it is true that Florida courts have adhered to the proposition that passage of time excuses a parent from child support obligations, with Florida Statutes § 61.30(17), the Florida Legislature makes clear the court can only exercise its discretion to award retroactive child support for up to 24 months (2 years) prior to the date of a mother’s petition for paternity, child support, or both—abrogating the common law right that a child was entitled to support retroactive to the date of birth! Therefore, the maximum amount of back pay that a father will be required to pay in child support, assuming paternity is established, is a 24-month value of child support. Furthermore, retroactive child support, in every case, is computed pursuant to the traditional child support guidelines as applied to the parents’ actual incomes during the retroactive period. Additionally, the court should consider an installment payment plan for the payment of retroactive support.

Consider the following situation: Man and Woman met in 2004, had a very brief relationship that lasted several weeks, and they never spoke again. In 2008, Woman comes knocking on Man’s door, informing him that when they were together 4 years before, she got pregnant and had a child. Soon thereafter, Woman initiates an action in circuit court to establish Man’s paternity of the child. As it turns out, Man is the father and the court orders him to pay child support. In this situation, it is important to realize that child support is a right which belongs to the child, and that support is a dual obligation by both biological parents. That being said, the court, in its discretion, is only allowed to award retrospective child support for up to 24 months before Woman initiated her paternity action. Therefore, in this example, Man would only be responsible for the past 24 months of child support and for future child support, which is determined by the parents’ actual incomes during that period of time.

If you have questions concerning your duties as a biological parent for payment of retroactive child support, consult an attorney for additional advice.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Support , Establishing Paternity

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Florida law dictates that the mother of a child born out of wedlock is automatically considered to be the legal parent who is required to provide support for her child. However, if a child’s parents are not married to each other when that child is born, Florida courts will not automatically presume a man is the biological father and thus recognize the father’s duties and financial obligations to the child unless paternity is legally established. Take, for instance, this example.

Eight months ago, Jane Smith was living with her boyfriend, John Doe. A couple of months after moving in, John was told by Jane that she was pregnant and she believed that they could raise the child together. However, one month before the baby was born, Jane and John broke up. When the baby was finally born, Jane felt she was entitled to child support from John because she believed him to be the biological father. Establishing paternity for children born out of wedlock is important to both the mother and child because it is essential for the child garnering the same rights as children born to married parents – including child support and inheritance.

For Jane and John, the easiest way to establish paternity would be to bypass a court proceeding and sign an affidavit saying the child belongs to both of them. When a mother completes the affidavit she attests that she was unwed at the time of the birth and that the man identified in the affidavit is the biological father of the child. When the man completes the affidavit of paternity, he swears he is the biological father of the child and he will be responsible for the medical and financial needs of the child until adulthood. But this is really only an option when the identity of the father is certain. This administrative procedure is most convenient because it can be performed at the birth hospital before the baby is discharged or at the local Child Support Enforcement Office. If completed at the hospital, the parents, like Jane and John, typically, do not have to pay a fee. But if done outside the hospital at the Child Support Enforcement Office, and Jane and John were from Fort Lauderdale or Miami, Florida, they could sign an affidavit at a Child Support Enforcement Office located in either Broward or Miami-Dade County.

But what if Jane was uncertain that John was actually the father because she got pregnant the month before he moved in with her, and she had also been seeing another man? She never told John about her uncertainties, but John eventually discovered these facts before the child was born. In this situation, although there is a possibility he is the father, John would most likely question whether he was the father, and signing an affidavit attesting to his paternity would probably not be in his best interest. In this situation, if Jane wants child support, she would most likely seek judicial help through the issuance of a court order to establish John’s paternity. Through judicial action, John can either sign legal documents establishing paternity or support, or both, which the court will then adopt as a stipulation, or the court may hold a hearing to establish paternity and support. If John fails to stipulate that he is the father, the court must hold a hearing to determine paternity of Jane’s child. In this hearing, the court may order genetic testing. If the court found John to be the child’s father, the court must then order support for the child.

In Florida, the child support guidelines that govern divorce proceedings also apply to determine, modify, or enforce child support for children born out of wedlock. This may include authorization of retroactive child support to the date when the parents did not live together in the same household with the child, but cannot exceed 24 months before the filing of the hearing to establish paternity. Therefore, if John failed to pay child support during the month before and the two months during the court ordered hearing to establish paternity, because the court determined John to be the child’s father, he must pay child support for those 3 months and for future child support expenditures.

If you are the mother and presumed father of a child born out of wedlock, consult an attorney to determine your child’s rights to financial and medical support.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Establishing Paternity

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In today’s society, it is becoming increasingly common for unmarried couples to have an unexpected child that either the mother or father, or both, decide to put up for adoption thus relinquishing their parental rights. But consider the situation where a couple may have been together 7 months before, broke up, and the ex-boyfriend found out directly from his ex-girlfriend that she is pregnant and due in two months. The mother decides to relinquish her parental rights to her own mother and father and wants to file a petition to that effect. Does the father, although unmarried to the mother, have any rights he may assert to contest such an action? In Florida, an unmarried biological father has the opportunity to assert his claim of paternity by filing the Florida Putative Father Registry Claim of Paternity form. Here is where you can find a sample form to fill out.

In Florida, an unmarried biological father has a right to assert his claim of paternity and obtain notice of a mother’s relinquishing of parental rights. But, to preserve these rights, the putative father must follow proper Florida procedure. In order for the putative father to preserve his right to notice and consent to an adoption, he must file a notarized claim of paternity form with the Florida Putative Father Registry which is kept by the Office of Vital Statistics of the Department of Health. When a putative father submits his paternity form to the Office of Vital Statistics, he consents to testing of his DNA as proof of being the father.

Timing of the biological father’s submission is also very important. To receive proper notice and reserve his ability to consent to the mother’s choices, the claim can be filed at any time before the birth, but may not be filed after the date the mother files a petition for termination of parental rights. For example, if three days after the birth, the mother decides to relinquish her parental rights, and the biological father has failed to submit a notarized claim of paternity, he has essentially waived his parental rights to be notified and provide consent to the mother’s decision. In Florida, the putative father should also realize that the interests of the state, the mother, the child, and the presumable adoptive parents outweigh his interests if he fails to take timely action to establish his relationship with the child.

If you are an unmarried man expecting a child with your significant other, consult an attorney to guarantee that your rights are properly safeguarded.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Establishing Paternity

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