When unmarried individuals have a child together, it is important for the Father to know his rights. Unmarried parents do not have the same rights as married couples. There are number of misconceptions surrounding a Father when he signs his child’s birth certificate, his rights in a child support hearing, and when parents go to Court to determine time-sharing (or physical custody). It is my hope to debunk these myths to prevent a situation that is not in the child’s best interest. This blog will consist of a series of entries related to this topic.
1. THE BIRTH CERTIFICATE
When a Father signs a birth certificate he is acknowledging that he is the biological and legal Father of the minor child. Signing the birth certificate says that the Father is agreeing to paternity (being the legal father) of the child and that the Father is taking legal responsibility. Legal responsibility provides the Father no rights to access or time-sharing with the child. Legal responsibility makes the Father liable for the financial support of the child only (i.e. child support). Neither the Police nor the Courts can enforce time-sharing between the minor child and the Father by being provided a copy of a signed birth certificate.
It is important to note that after signing the birth certificate and beginning to share in the responsibility of raising the child it can be very difficult to disestablish paternity. If a Father signs his child’s birth certificate, there is no need to have a separate DNA test. DNA tests are typically only required when there is a dispute. Just because a Father later finds out that he is not the biological father to the child, a judge will not likely invalidate the Father’s legal paternity since it would not be in the child’s best interests. A Court is not going to render a child fatherless under such conditions unless there are very good reasons present. On a different note, a Father cannot “sign” away or otherwise terminate his parental rights simply because he chooses. There has to be some legal reason for the parent-child relationship to be severed.
Essentially, the birth certificate is for legal purposes and establishes the Father as the legal parent. The next step is to file a Petition to Establish Paternity with the Court to define the Parent’s rights to access to the minor child. This right to access is the time-sharing and right to individual contact with a child. Until such access is granted by the Court (or by agreement of the parties), the Mother has 100% control as to time-sharing and decision making. A word of caution however, unilaterally preventing time-sharing from the other parent is typically not in the best interest of the child. A court may see such an action as being driven out of spite and indicative of a parent who is not willing to foster a relationship with the Father. Should the Court view one of the Parents as not willing to foster a relationship with the other, that Parent risks an unfavorable result.
2. CHILD SUPPORT HEARINGS
These hearings involve the Department of Revenue who are represented by the Florida State Attorney General’s Office. The purpose of these hearings is to establish legal paternity and support only. These Courts are without the jurisdiction to make any decisions as to time-sharing. These hearings can establish paternity for Fathers who may not have actually signed a birth certificate. At these hearings the Court reviews the incomes of both parents and the expenses related to the child so as to establish a child support obligation.
3. PETITION TO ESTABLISH PATERNITY
Either Parent can file a Petition to Establish Paternity. The Petition typically asks that legal and biological paternity be established, for support to be calculated and for a Parenting Plan to be entered by the Court. The Parenting Plan establishes the decision making authority of each parent (presumptively 50/50) and time-sharing (which is typically case-by-case). The Parent Plan and resulting Final Judgment of Paternity provides the Father and Mother with an enforceable Court Order. The important part is that the Father is provided legal access to the minor child as outlined in the Court’s Final Judgment and Parenting Plan. The significance of such an order is that both Parents are afforded the rights and responsibilities associated with the child having two (2) parents who not only have the obligation of financial support for the child, but now have defined rights as to time-sharing.
If the Father fails to establish his rights to access to the minor child, there is a chance that the Mother could make the unilateral decision to remove the minor child from the State of Florida. Florida Statute 61.13001 governs how parents may relocate with their children. In a situation where the Parties have established their rights to time-sharing (i.e. parenting plan or Final Judgment of Dissolution of Marriage), neither Party, residential parent or not, must seek written permission or an order from the Court authorizing the proposed relocation. A parent who has not established any rights to time-sharing or access with the minor child may have no right to cause the other parent to return to the State of Florida should the other choose to relocate. This is a very serious consequence to not establishing a Parenting Plan.The filing of a Petition to Establish Paternity and Time-Sharing prevents the other parent’s unilateral departure and makes their proposed relocation a question for the Court to resolve or for the Parent’s to negotiate.
5. WHAT DOES THIS MEAN
It is obviously a very delicate situation to tell the Mother of your child that you want to file through the Court’s to establish your rights. If the relationship between the Mother and Father is still intact, such a request could be tantamount to setting the relationship on fire. It’s important for Mothers and Fathers to seek independent legal advice so that they can attempt to minimize the impact of any sort of litigation on their relationship with each other and, more importantly, the child. The child is the makeup of both parents and the child will want a strong and continuing bond with both parents. As such, Parents should seek representation that attempts a resolution where the child has two (2) healthy and loving parents. There are certainly plenty of situations where the child’s time-sharing with the other parent may be problematic. An experienced family law practitioner should be able to navigate these concerns and hope to achieve a result that is in the best interest of the minor child. While the attorneys at Cairns Law, P.A. represent the interests of our clients zealously, we make the central focus your family and counsel our clients on the pros and cons of every possible resolution.