Paternity Rights and Child Support in Florida

In this article, we’ll break down:

• The Difference Between a Biological Father vs. a Legal Father
• Paternal Rights and Non-Rights, and the Impact on Child Support
• When a Man Fathers a Child with a Married Woman
• Legal vs. Putative Biological Fathers in Dissolution of Marriage
• Non-Biological Legal Fathers and Obligations of Child Support

A child’s biological father is not automatically granted paternity rights in Florida. In fact, in some cases, the child’s legal father – not the biological father – may have more rights over the child.

Cases of paternity are rarely cut and dry. And yet, the stakes are high as the outcome can determine who must help financially support the child, and potentially take a more active role in the child’s life.

Whether you’re a legal father, a biological father, or a mother, paternity rights are serious determinants of child support in Florida and should be understood by everyone involved.

The Difference Between a Biological Father and a Legal Father

In Florida, there is a legal distinction between a child’s legal father and biological father. The circumstances that constitute “legal father” status are defined by:

“The man to whom the mother was married when the child was born and whose name appears on the birth certificate” is considered the child’s legal father.

When these circumstances are both in play after a child is born, the child’s legal father is rarely required to take a paternity test to prove that he is also the biological father for his legal status to be recognized by law.

The court’s assumption of paternity does include a caveat: the parent’s marriage must be considered “intact” when the child is born. The court considers a marriage “intact” if there is no pending divorce proceeding taking place. So, if the couple was planning to divorce before or at the time of the child’s birth, the court may require the husband to establish paternity before being named the child’s legal father.

If a paternity test finds that the husband is not the biological father of his wife’s child, the husband’s name may not appear on the birth certificate and, therefore, the husband will not be recognized as the child’s legal father.

A Legal vs. Biological Father’s Rights and Non-Rights, and the Impact on Child Support

What happens if a man claims to be the biological father of a child who is legally recognized as the child of another man?

The law is almost always on the side of the legal father over the self-proclaimed biological father. Why? Because when a child is born into an intact marriage in Florida and recognized by both the husband and the wife as their child, the court deems the husband as the legal father “to the exclusion of all others.”

As a result, a man claiming to be a child’s biological father typically has no rights to that child—common law, statutory, constitutional, or otherwise. And, he has no right to sue for paternity.

This has a significant impact on child support payments and each parent’s child support obligation.

When a court establishes child support, the legal father has an obligation to financially support the child unless the court has established that the legal father’s rights to that child have been revoked or divested. So, even if another man claims to be the child’s biological father, and the legal father’s rights are revoked, the legal father is still a key member of the child support case.

What Happens When a Man Fathers a Child with a Married Woman?

There are cases when a mother is in an intact marriage yet bears a child fathered by another man.

In these cases, the biological father can attempt to intervene to prove paternity. However, the Florida courts have a long tradition of denying a man paternity rights or responsibilities over his child in these cases when the following circumstances are present:

• The mother is in an intact marriage
• The child is recognized by the husband and wife as their child
• The husband is deemed the legal father to the exclusion of all others
• The man claiming to be the child’s biological father has no right to sue for paternity

This typical view by the court may seem like a violation of the self-claimed biological father’s rights. However, allowing an intervention would go against the court’s established assumption that when a child is born into an intact marriage and recognized by the husband and wife as their child, the husband is the legal father to the exclusion of all others. Therefore, a man claiming to be the child’s biological father has no rights to the child.

Florida Statutes 742.10 and 742.11 also help prevent a biological father from suing for paternity. Collectively they state that the court has primary jurisdiction and procedures for the determination of paternity for children born out of wedlock, and that paternity action may only be brought to the court if it hasn’t already been established by law.

Again, due to the court’s assumption of what constitutes a child’s legal father stated above, paternity, in these cases, would already be established by law. Therefore, a putative father is not permitted to intervene.

There are, of course, exceptions to every rule. And in cases of paternity, even in ones where a husband and wife share an intact marriage, there is a small chance that a biological father may receive some paternal legitimacy. For the biological father to have any chance at gaining paternal rights, the following should be true:

• He shows a substantial and continuing concern for the child
• He financially supports the child
• He has a strong relationship with the child and is committed to continuing it
• His biological child shares his last name
• The biological mother is divorcing or already divorced from her husband

How are the Paternal Rights of Legal and Biological Fathers Impacted in Cases of Dissolution of Marriage?

Divorce can quickly complicate paternity rights and, sadly, it’s a life event that can be abused by an opportunistic parent– legal or biological – trying to establish or reclaim parental rights that may not be in the child’s best interest.

One of the limitations the court has in place to avoid these situations is a hold on paternity petitions during divorce proceedings. Specifically, a putative biological father is not allowed to petition to establish paternity in cases where the mother and legal father of the child are going through a divorce if:

• The legal parents have agreed that the child will be treated like any other marital child
• The putative father waited more than 2.5 years from the child’s birth to try to establish paternity
• The putative father has not accused the husband and wife of fraud or concealing critical facts
• The putative father has not allegedly created a parental bond with the child
• The putative father has not allegedly attempted to terminate the legal father’s rights

Read: Paternity in Florida FAQs

Does a Non-Biological Legal Father Have an Obligation to Support a Minor Child of the Marriage?

Up until now, we’ve covered legal fathers who willingly accept responsibility for a child born to their intact marriage, even without scientific proof of a biological connection. But, what if a non-biological legal father does not want to take responsibility for the child?

Under Florida law, a husband has no legal duty to support a minor child of the marriage if the child is not his natural or adopted child, and if he is not obligated by law to do so. We see this issue when a mother gives birth to a child with a man other than her husband while she and her husband are still married.

To avoid paying child support for a child that is not biologically his, the husband must disestablish paternity through the court. Once paternity is disestablished, the court can order the biological father to pay his child support obligation.

Read more about Disestablishing Paternity in Cases of Child Support in Florida

Understanding Your Paternity Rights and Child Support in Florida

Paternity rights in cases of child support almost always make a dissolution of marriage case even harder. Whether you’re a legal father fighting to maintain parental rights, a biological father working to establish rights, or a mother trying to secure the best possible child support and custody arrangement for your child, you need an experienced family law attorney advocating for your rights and the rights of your children. Contact us today for a free family law case evaluation. We’ll listen to your case and explain your rights. When you’re ready to work with a Florida family law and divorce lawyer to help you navigate paternity rights and child support, fill out the form on our Contact Us page or give us a call at (954) 880-1302