If a child is born when the child’s mother is married, Florida law presumes that the child’s mother and her spouse are that child’s legal parents. This means that the child’s mother and her spouse automatically enjoy all the rights and responsibilities of being a parent of that child.
Unmarried fathers, on the other hand, are often surprised to learn that they are treated differently under Florida law. This is significant given that almost half of children in Florida are born to unmarried mothers today. So, what does Florida law provide for unmarried fathers and children born outside of marriage?
The Mother Alone is the Natural Guardian of the Child
Section 744.301(1), Florida Statutes, provides that “The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” As the “natural guardian” of the child, the mother enjoys all the legal rights and responsibilities of parenthood, including contact, time-sharing, and decision-making.
A Birth Certificate Is Not Enough
But what if the unmarried father appears on the child’s birth certificate? It is often surprising to fathers in these scenarios to learn that the birth certificate, on its own, does not automatically give them parental rights over their child.
Instead, Florida law provides that paternity must be established through one of several methods before a father can obtain these rights. Under Florida law, paternity may be established by:
- An adjudicatory (settled judicially) hearing brought under the statutes dealing with inheritance, dependency, workers’ compensation, or similar compensation programs;
- An affidavit acknowledging paternity, or a stipulation of paternity, is executed by both parents and filed with the clerk of court;
- An affidavit or voluntary acknowledgment of paternity is executed by both parents following section 382.013 or 382.016, Florida Statutes; or
- The Department of Revenue determines paternity through an administrative proceeding for child support.
Alternatively, an action to establish paternity must be filed in circuit court.
Obtaining Parental Rights After Paternity is Established
Once paternity has been established, Florida law provides that the father may seek to obtain his rights to access, spend time with, and make decisions regarding the child. A court action will be required to determine a parenting plan, parental responsibility, and a time-sharing schedule with the child. This determination is always made consistent with the best interest of the child.
Take the First Step Today
If you are the parent of a child born outside of marriage and would like to understand your rights and responsibilities, please contact our office for a consultation. Attorney Michael Mendoza is a knowledgeable family law attorney who focuses his practice on issues affecting families just like yours.