Establishing Paternity in Florida

Quick info: How do I establish paternity in Florida?

There are several different ways. The most common is through an Affidavit of Paternity. Once a Voluntary Acknowledgement of Paternity has been signed, it becomes final and binding 60 days later. That is, once 60 days have passed since both parties signed the acknowledgement, typically neither party can revoke or set the acknowledgement aside. In fact, unless there was some extreme pressure or force that caused one party to sign the acknowledgement, a party will not likely be able to set aside an acknowledgement form.

In our modern culture, it is becoming increasingly common for couples to have children outside of marriage. As a result, some fathers may find that their rights to see their children or participate in parenting their children are challenged once the relationship ends. Where the mother and supposed father are in agreement concerning paternity, the two parties are typically able to resolve paternity issues outside of court. However, where there is a dispute concerning paternity, a paternity action is the vehicle through which the rights and obligations of fatherhood are established. These types of cases can be very fact specific, and a successful outcome depends on a compelling presentation of these facts.

Biological Father vs. Legal Father

There is a distinction between the biological father of a child and the legal father of a child. Identifying the biological father of a child is, in theory, a relatively easy process – it is the man who in fact fathered the child. The legal father of the child, however, is the man who has the rights and responsibilities of parenthood with regard to that child. A child’s legal father is established by marriage, adoption, or court ruling.

In some cases, the biological father and legal father are one and the same. For instance, suppose Matt and Mary are married in 2012. In 2013, Mary gives birth to the couple’s first son. There is no question that Matt is the biological father of the child. In this case, Matt is also considered the legal father of the child as well.

But suppose instead that Matt and Mary have a relationship, but never marry.  Mary becomes pregnant as a result of their relationship. Before the child is born, Mary weds Derek. In this case, Matt remains the biological father of the child, but Derek is considered to be the legal father.

Consider the example of Matt and Mary again, only this time they have a child but never wed. Mary has a child from the relationship. Sometime later, a court finds that Matt is the legal father of the child and issues a court order to that effect. In this case, Matt was the biological father of the child from the beginning, but he did not become the legal father of the child until the court entered its order.

Voluntary Acknowledgement of Paternity

In some cases, there will be no disagreement or dispute concerning the supposed father’s paternity of a child or children. In such a case, the mother and supposed father can sign a “Voluntary Acknowledgement of Paternity.” By signing this form, both of the parties are stating under oath that the supposed father is in fact the child or children’s true legal father. Signing this form gives the father all the legal rights and responsibilities that come with parenthood, including the right to visit and develop a paternal relationship with the child, the right to participate in raising the child, and the responsibility to provide support for the child or children’s needs.

Once a Voluntary Acknowledgement of Paternity has been signed, it becomes final and binding 60 days later. That is, once 60 days have passed since both parties signed the acknowledgement, typically neither party can revoke or set the acknowledgement aside. In fact, unless there was some extreme pressure or force that caused one party to sign the acknowledgement, a party will not likely be able to set aside an acknowledgement form.

It is therefore beneficial that each party carefully consider the permanent nature of a voluntary acknowledgement of paternity before signing it.

Paternity Based on Marriage or Legitimization

Another method by which paternity can be established is through marriage. When the mother of a child is married at the time of the child’s birth, her husband is determined 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. So if Mary becomes pregnant but marries Matt before she gives birth to the child, Matt will be considered the legal father of the child regardless of who the biological father is. Nor does it matter if Mary leaves the father’s name off of the birth certificate – hospital staff will complete paperwork that will identify Matt as the legal father.

What if Mary and Matt wed after the child is born? Through a process called legitimization, Matt can still end up being declared the legal father of the child. Suppose Matt and Mary are not married and Mary gives birth to a son from her relationship with Matt. Afterwards, she marries Matt. In this scenario, because Matt was the biological father of the child and him and Mary married, Matt will be considered the legal father of the child.

Genetic Testing and Administrative Orders

What if the alleged father and mother never marry and the father denies any responsibility for the child? Such a situation does not necessarily mean the parties must go to court. In certain circumstances, the Florida Department of Revenue can assist the mother and alleged father in completing a genetic test (or a DNA test, as it is sometimes called). This process begins with the mother, the alleged father, and the child submitting biological samples. These samples are collected from cheek “swabs” of each party – there are no needles or blood draws performed. These samples are then sent to an independent laboratory, where the alleged father’s DNA is compared with the child’s DNA for a possible match.

If the genetic tests show that there is a match between the alleged father’s DNA and the child’s DNA, the Department of Revenue will issue an Administrative Order of Paternity and notify the Florida Office of Vital Statistics to add the father’s name to the birth certificate. Although the administrative order is not an order issued by a judge, it is still a legally enforceable order. Establishing paternity in this fashion is often quicker and less expensive for the parties than going to court.

An administrative order can allow the mother of the child to begin collecting child support, but since this process is done with the assistance of the Department of Revenue, this method cannot be used if the father is seeking to exercise parenting time or other legal rights.

Beginning a Paternity Action in Court

Assuming that the parties do not agree regarding the paternity of the child or children and hence do not sign a voluntary acknowledgement, establishing paternity requires the filing of a court case to determine the issue. Under Florida statutes, a paternity action can be commenced by:

• The mother of the child;
• The “alleged father,” that is, the man who believes he is the father of the child or who has been identified by another as being the father of the child;
• A legal representative acting on behalf of the child; or
• The Florida Department of Revenue.

Although a paternity case can be commenced before the child’s birth, the court cannot enter any final orders until after the child’s birth.

A paternity case brought by the Florida Department of Revenue is brought for the sole purpose for making child support orders. Such a paternity case does not result in the court entering orders granting the father parenting time or other such orders. For instance, suppose Mary has a child and believes Matt to be the father. As a result, she wishes for Matt to be ordered to pay child support. Mary is able to bring a paternity action, or the Department of Revenue may also bring an action. In either event, a court can enter orders that establish a child support obligation for Matt (assuming Matt is found to be the legal father of the child).

Suppose, however, that Matt believes he is the child’s father, but Mary does not believe Matt is the child’s father. Matt wishes to obtain parenting time with the child. In this case, Matt must file a paternity action; the Department of Revenue cannot file a case on behalf of Matt simply so he can obtain parenting time with the child.

The court can find the alleged father to be the legal father of the child through evidence or through genetic testing. Establishing paternity through evidence other than genetic testing would require testimony or other evidence concerning the nature of the parties’ relationship, the parties’ relationships with other individuals, and any conduct by either party tending to show or disprove paternity. For example, if Matt made statements to his friends or family that showed he considered the child his own, the court can consider that evidence in determining whether Matt should be found to be the legal father of the child. If the court orders genetic testing be done, the court will typically order the parties to share the expense.

In addition, if the alleged father is served with a summons directing him to appear in court but he fails to appear, the judge can enter what is known as a “default judgment” and find that the alleged father is the legal father.

What if, before trial, the parties agree that Matt should or should not be considered the legal father of the child? In this case, the parties are free to sign and adopt what is known as a “consent order.” A consent order is simply a written declaration setting forth facts and legal conclusions that both parties agree to. In other words, by signing a consent order, both parties are acknowledging that the contents of the order are true and correct. When parties are able to agree to issues such as legal paternity, the court will generally accept and follow consent orders.

What if I Learn Later that I Am Not the Biological Father?

Unfortunately, parties are not always upfront with one another regarding paternity issues. There have been cases in which a mother has told an alleged father that he is the biological father of her child. As a result, the alleged father agrees or finds himself ordered to pay child support. Sometime later, the mother confronts the father and tells him that he is not in fact the biological father. This may leave the other party in the position of paying support to a child that is not his own. Florida statutes do provide a mechanism whereby someone can challenge a previously-entered finding of legal paternity. Doing so successfully, however, is difficult, as any prior actions, comments, or conversations the alleged father made concerning the child can be considered admissions of paternity. It is best to consult with an experienced family law attorney concerning the exact requirements to set aside a paternity finding.

Conclusion – Florida Paternity Cases

Parenting a child comes with a unique set of rights and responsibilities. The courts look to award those rights and responsibilities to the legal father of a child, who may or may not be the biological father of the child. In cases where the mother and the alleged father agree as to the alleged father’s paternity, the mother and the alleged father can sign a voluntary acknowledgement of paternity. In addition, if the alleged father is married to the mother at the time of the child’s birth, or if the alleged father later adopts the child, he will be considered the legal father of the child. Once a finding of legal paternity has been made, it becomes difficult to set such a finding aside.

Establishing paternity can be a complex task that has serious financial and other ramifications for the mother and/or the alleged father. Whenever paternity is disputed, it is advisable to consult with an experienced Ayo and Iken family law attorney. Doing so ensures that the parties understand their rights and responsibilities should paternity be established. Our legal team can also advise the parties as to alternative ways that paternity can be established other than through a court order. Finally, the court can help set aside a previously entered paternity order in the event new evidence comes to light showing the legal father is not the biological father of the child.

Author’s note from Attorney Howard Iken: To establish paternity in Florida, there are several ways including signing a Voluntary Acknowledgement of Paternity or going through a paternity action in court. The biological father and legal father can be different, and the legal father is established by marriage, adoption, or court ruling. Signing a Voluntary Acknowledgement of Paternity gives the father legal rights and responsibilities, but it becomes final and binding after 60 days. Paternity can also be established through marriage or legitimization. In cases where the father denies responsibility, genetic testing can be done with the help of the Florida Department of Revenue.