What kinds of duties does a biological father have when the parents are not and were not married?
In Florida, when two people have a child and they were not married, this is a paternity action. The father can do what is called an acknowledgment of paternity when the child is born. This is done in front of a notary and it basically says that the person is the dad. This does not, however, give any rights or responsibilities for the child. This is a very common misconception and, quite honestly, very unfair. If there are no judicially established rights for an unwed father, even though the father is on the birth certificate, he has no power. The mother has sole parental responsibility. That means the mother can make 100% of the decisions. That is shocking to most people to learn, and it should be shocking.
How does a father get those rights? Thankfully, it is pretty easy to get rights as a father. Provided one has not done something basically horrendous, a man should be able to get what is called shared parental responsibility of their child even if the father and the mother were never married. The father should also be able to get timesharing with the minor child. Unfortunately, most people need a lawyer to do this. A person does not have to have a lawyer to get things done at the courthouse, but it is so much easier and so much more efficient to do so. There are so many little things that can go wrong if a lawyer is not used in a paternity action in Florida. The child support obligation could be way too high, the father may not get enough timesharing and there could be a crazy high child support arrearage established. A family law attorney usually can make everything a little more reasonable.
Once a legal father proves by unrebutted scientific evidence that he is not the biological father of a child conceived during the marriage, he has no enforceable legal obligation to pay child support. Schultz v. Schultz. This is based on the notion that, although courts are not willing to illegitimize a child born from a marriage, legitimacy is unaffected by paternity. Daniel v. Daniel. The First District Court of Appeal notes that support is “owed by both biological parents from the moment of the child’s birth.” However, the court cannot retroactively impose “a duty to pay for a period prior to a time when the legal and moral obligation existed. McMillan v. State. Ultimately, the goal of both paternity and support proceedings is to “insure the child’s biological father pays child support.” Department of Revenue v. Lagree.
Further, child support may be retroactively awarded in a paternity action if the biological parents do not reside together in the same home; however, the retroactive support may not exceed 24 months before the filing of the paternity petition. The 2005 version of the Statute omitted the 24-month retroactive period and allowed the court to impose retroactive support on the biological father from the date of the child’s birth so long as the biological parent did not reside in the same home during that period.
It is very difficult for a biological father to break into an existing marriage. Basically, if two people are married and the minor child was born during the marriage but the husband is not the father, the actual father or the biological father has an uphill road. It is not impossible in some circumstances, but in most circumstances, it is impossible. A trained family law attorney should be able to help you with the information needed to see if the biological father has “standing” to go after their child.
Kenny Leigh & Associates is a firm that only represents men in the area of family law. Kenny Leigh & Associates can handle any paternity matter and any other matter that falls under the realm of family law such as divorce, custody and modifications of divorce orders and other family orders.
Kenny Leigh & Associates has offices throughout the entire State of Florida. Visit menonlyfamilylawonly.com to see if the firm can represent you in your county. Current offices are in Jacksonville, Fleming Island, Gainesville, Daytona, Fort Walton Beach and Breach-of-contract action Raton, Florida.