The state of Florida is much more concerned about the children in the state, rather than the fathers in the state. Because of this, it is conceivable that a man who finds he is not the biological father of a child could still be ordered to financially support the child. Paternity laws in the state tend to be fairly complex, so if you are in a situation where you are paying child support for a child who is not your child, it could be beneficial for you to speak to an experienced Ayo and Iken attorney who can help you navigate the legal system.
In the past, only the mother of a child could file a paternity suit to determine whether a man was the biological father. Today, the laws have changed, allowing either the mother or the father to file a paternity suit in an effort to determine the biological parentage. Every individual case is different, however if a genetic test proves you are not the biological father of a child you thought was yours, the birth certificate could be changed to reflect the new facts—however this is not always the case.
If the DNA test shows you are not the biological father, don’t get too excited, thinking you can simply stop paying child support. There is an extensive process for disestablishing paternity, and, in some cases, the state may not allow you to do so. Disestablishment of paternity is a step which should be considered very carefully before you move forward.
Labels Applied to Children and Fathers in Florida
Because as many as a third of all children today are born to unmarried parents, they may be subject to the unfortunate label of “illegitimate.” On the other hand, when the parents are married and a child is born, he or she is considered “legitimate.” Under the laws in the state of Florida, a man may be a “prospective” father, a “presumptive” father, a “putative” father or an “unmarried, biological” father.
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What is a Putative Father?
If you were not married to a child’s mother when the child was born, therefore have no legally established relationship to the child, however you believe yourself to be the child’s biological father (or the mother has asserted you are the biological father), then you are considered the putative father. In the state of Florida, there is a Putative Father Registry, which allows a man who believes himself to be the biological father of a child, to preserve your right to notice and consent in the event of an adoption. You can register a claim of paternity through the Putative Father Registry at any time prior to the child’s birth, however you may not register after a Petition for Termination of Parental Rights is filed.
Filing with the Putative Father Registry does not impact the child’s birth record; if you want to be listed on the birth certificate of the child, you must either have the mother’s agreement, or file for a court order. Should you file with the Putative Father’s Registry, then change your mind prior to the child’s birth, you may file a Revocation of Claim of Paternity at any time prior to the birth. The same form can be used to update prior information. The information in the Putative Father Registry can only be disclosed to those involved in the planned adoption of the child, unmarried biological father, upon request and the birth mother, upon request.
What is a Prospective Father?
A prospective father is the man who has either been identified as the possible father of the child, or the person who claims to be the father of the child. You could potentially be identified as the prospective father of a child if:
- The mother of the child was living with you at the approximate conception time.
- The mother of the child was married to you at the approximate conception time
- The mother of the child placed your name on the child’s birth certificate.
- The mother applied for public assistance, and named you in connection with that application.
The Difference Between Legal and Biological
Biological paternity means the child is your biological child—he or she has your DNA. Legal paternity is a different matter, meaning you are legally recognized as the child’s father, and that you have parental rights, however you can be the legal father without being the biological father, and you can be the biological father without being the child’s legal father. Adoption, the involvement of a stepparent, or a child conceived during an extramarital affair are all instances in which legal and biological may not be the same thing. Further, in some cases, you may be presumed to have legal paternity when you are not the child’s biological father. This legal presumption of paternity could occur when:
- At the time of the child’s birth or conception you and the child’s mother were legally married.
- You signed the birth certificate even if you had a suspicion you were not the child’s biological father.
- You completed an Acknowledgement of Paternity Form.
Any of these could make you the presumed legal father of the child. Once you have acknowledged paternity (even if you know the child is not your biological child), you only have a relatively narrow window of opportunity to contest or dispute paternity of the child.
What is the Difference Between Legitimacy and Paternity?
There are times when a man who has been definitively shown to be the biological father of a child has absolutely no parental rights, therefore legitimacy (a child born to married parents) may not be the same thing as paternity. Consider this: you are married to a woman who is carrying a child you assume to be your biological child. The child would be considered “legitimate,” and paternity is assumed. However, if the two of you divorce prior to the birth of the child, and the mother stipulates in the divorce that you are not the father, then legitimacy could change, as could paternity. After the child’s birth, a Termination of Parental Rights might be required if you are told the child is not your biological child.
What is Disestablishment of Paternity?
If you were not married to the mother of the child at the time of conception or birth, things can actually get even muddier. Assume you were living with the mother of the child at the time a baby is conceived or born. You naturally assume the baby is your biological child. You and the mother later decide to call it quits, and your ex then applies for public assistance, or child support. Now the state of Florida is involved, and they are likely to order you to pay child support. So, you pay child support for months, maybe even years, then you are told by the child’s mother that the child you believed to be your biological child—is not. She tells you there will be no more visitation between you and the child, yet according to the state of Florida, a court order for child support remains in effect.
A Disestablishment of Paternity, could potentially end in one of the following ways: First, the court would determine through genetic testing that the child in question is not your biological child. Or, the genetic testing could show you actually are the child’s biological father, your child support order will stay as is, and you may have to file for court-ordered visitation rights.
In order to file a Petition for Disestablishment of Paternity, you must meet the following criteria:
- You don’t owe any unpaid child support when the Petition is filed.
- DNA samples were obtained—either as a result of a judge’s order or voluntarily.
- Artificial insemination must not have been the method of conception for the child if you were married to the mother of the child at the time of that conception.
- You must not have adopted the child while married to the child’s mother.
- The Petition must be submitted either within two years of the birth of the child, or within two years of the time the mother told you that you were not the child’s biological father.
Although disestablishing paternity would be financially advantageous for you, particularly if the child is not your biological child and you are not allowed to see the child, there can still be unintended consequences for disestablishment of paternity. Consider the child caught in the middle of grown-up mistakes, games and legal battles. Losing a parental relationship can be emotionally devastating for a child, therefore it is important to consider all aspects of disestablishing paternity.
How to File a Disestablishment of Paternity Suit in Florida
If you should decide to go forward with your disestablishment of paternity case, you must submit a sworn affidavit to the court which states you have newly discovered evidence regarding your paternity since the time you were ordered to pay child support, or since the paternity was initially established. A copy of your Petition to Disestablish Paternity must be served on the mother of the child, and genetic testing results must be provided with your Petition. The DNA test must show you are not the biological father of the child. Finally, you must include an affidavit which shows you are current on your child support, or, at the very least, that you made an effort to comply with your child support obligations. Should the court find you have met all the requirements above as well as that you in no way prevented the true biological father from asserting paternal rights, then your petition could be granted.
Reasons Your Petition for Disestablishment of Paternity Could be Denied
If you made mistakes, or engaged in certain acts after you learned the child was not your biological child, your petition could be denied, including the following:
- You allowed the mother to put your name on the child’s birth certificate, after you had good reason to believe you were not the biological father of the child.
- You promised, in writing, to support the child after you had good reason to believe you were not the biological father of the child.
- You willingly signed an Acknowledgement of Paternity—once you had good reason to believe you were not the biological father of the child.
- You married the mother of the child, after you had good reason to believe you were not the biological father of the child and you assumed parental and child support obligations.
Other Issues Related to Disestablishment of Paternity
Remember, if your Petition is approved, it is not retroactive—meaning any child support you paid on behalf of the child cannot be refunded to you. Further, while the court is making its decision regarding your Petition, you must continue to pay child support. Once you decide to file for Disestablishment of Paternity, it is imperative that you do nothing which would lead others to believe you are acknowledging your paternity—including posting anything about the child on social media.
Don’t forget that you must have new information which leads you to believe the child is not your biological child. This means if were doubtful of the paternity of your child in the past, and you discussed your doubts with others, however you took no legal action, the court is unlikely to allow you to now disestablish paternity. As you can see, disestablishing paternity can be very complex, and your chances of success are much better if you have a knowledgeable Ayo and Iken attorney by your side.