Paternity is the determination of the legal father status. In other words, it is the legal determination of who has legal rights and responsibilities of being a child's parent. Legal rights are referring to having timesharing with the child and decision-making rights concerning the child's residence, activities, education, medical, dental and vision treatment and religious upbringing. Legal responsibilities are referring to the obligation to provide financial support and health insurance. Establishing paternity will also alter who may inherit and standing to sue for wrongful death.
Paternity may be established in several different ways. When a married woman gives birth, the husband is presumed to be the legal father and will be named as such on the birth certificate even if the biological father was someone else. If a child is born out of wedlock and the parents are not disputing paternity, then the mother and father can agree that he is the father. They can do so by signing a notarized affidavit or by both of them signing a voluntary acknowledgement of paternity witnessed by two individuals. The affidavit or acknowledgement may be rescinded by either party within 60 days without any reason being stated. Thereafter, it can be set aside only by showing fraud, duress or material mistake of fact and the burden of proof is on the challenger. A man may also become the legal father by marrying the mother while known as the reputed father or consenting to be named as the child's biological father on the birth certificate after learning that he is not the biological father.
If paternity has not been established as described above, then a paternity action may be filed to establish the legal father. A paternity action may be filed by the mother, child or the man who believes that he is the father. The outcome of the case, except in certain limited situations, will be determined by the results of the DNA testing. Until there is a finding of paternity, the man cannot assert his rights to timesharing and decision-making and the mother and/or the relevant Child Support Enforcement unit cannot obligate him to financially support the child.
If a child is receiving public services under what is known as Title IV-D, then the Florida Department of Revenue can initiate proceedings to establish paternity. The Department may require the alleged father to submit to DNA testing prior to commencing a formal proceeding or may commence the proceeding and then request the DNA testing. If the DNA results are positive indicating that he is the biological father, then the Department will issue a proposed order of paternity. The alleged father may request an administrative hearing to contest the finding or may commence a paternity action at any time in the circuit court. If the alleged father files a circuit court paternity action within 20 days of receiving notice of the administrative proceeding, then the administrative proceeding ends and all questions of paternity, custody and support are decided by the circuit court.
Once paternity is established, then the alleged father can pursue timesharing and decision-making rights. The mother may also pursue current and retroactive child support after paternity is established. Any award of retroactive support, however, is limited to two years prior to the filing of the petition. Accordingly, if part of the reason you are seeking to establish paternity is for child support purposes then you should act quickly to preserve your rights to retroactive support.
People often have disputes concerning the name of the child. If the mother is married and there is no custody order in place, then the mother and her husband choose the name together. If they cannot agree, then the child's name is hyphenated and the surnames are listed in alphabetical order. If the mother is not married and she will have custody, then she selects the name. The father does not have any rights to name the child until paternity is established. The act of establishing paternity, however, will not automatically entitle the father to change the surname. The party requesting the name change has the burden of proving that the name change is in the child's best interests.
If you have any questions about establishing paternity to assert parental rights or to establish child support, then please give me a call to discuss your case as soon as possible. Thank you for choosing Daniel M. Genet, P.A. and I look forward to working with you.
Daniel M. Genet, P.A.
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