Establishing or Challenging Paternity
Paternity is about establishing the identity of a child’s father for purposes of having the father contribute to the support of the child and/or establish parental rights. In the majority of cases, the father’s identity is not at issue especially if the parents are married to one another. If married, the law presumes the husband is the child’s father, and he has a legal obligation toward the child born of the wife.
But most paternity suits involve non-married persons and are brought by the mother against a person she alleges is her child’s father. In these circumstances, paternity is established in the following ways:
- A voluntary acknowledgement agreement
- Administrative-ordered genetic testing establishing biological parentage
- Court order
- Legitimation—couple marries and birth certificate is modified to show husband as the legal father
As the legal parent, the father possesses the duties and responsibilities to support the child. This includes the right to participate in making the material decisions regarding the child’s education, health and welfare, to have parenting time if the couple is not married and to provide financial support for the child’s needs.
Marriage or Legitimation
Marriage automatically confers paternity on the husband. This is true even if the parties marry after the child is conceived but before birth. If the child is born before the couple marries, they can legitimize paternity by marrying so the husband becomes the legal parent as well as the biological.
Should the parents be unmarried, they can establish paternity at the hospital without marrying when the child is born by completing and submitting a Paternity Acknowledgement form that is witnessed by two persons or by signing it before a notary. This will put the father’s name on the original birth certificate after the document is received by the Department of Vital Statistics.
A different form is required if this is not done before the baby and mother leave the hospital. At any time afterwards, the couple can sign an Acknowledgement of Paternity form. This form must also be signed either before two witnesses or before a notary public. The form is sent to the Florida Department of Vital Statistics where the birth certificate is altered or updated to include the father’s name.
When signing a Voluntary Acknowledgement of Paternity, either party has 60-days to revoke it. After this time, it is irrevocable unless a party can show that undue influence was used to pressure the individual into signing it.
If the parties dispute paternity, they do not necessarily have to go to court. There is an administrative process whereby the Florida Department of Revenue which enforces and collects child support payments can help by having the parties submit to a DNA test. This is a simple swab of the cheek of the child and alleged father; the samples are sent for evaluation at a special lab. If there is a match, the Department of Revenue issues an Administrative Order of Paternity that is sent to the Department of Vital Statistics so that the father’s name may be added to the child’s birth certificate.
If the father was not seeking visitation or other equal parenting time, then this method is used and the Department of Revenue will begin seeking and collecting support payments from the father. If the father is pursuing legal rights concerning the child, then he must begin a court action establishing his paternity and the parental rights he is seeking.
Paternity lawsuits may be initiated when the parties disagree over parentage and will not sign a Voluntary Acknowledgment of Paternity. An action can be commenced by the mother, the alleged father who is seeking legal rights over the child, a legal representative of the child or the Department of Revenue. The Department of Revenue may bring suit solely for child support purposes.
Genetic testing is usually definitive on whether the man is the biological father before the court will issue an order making him the legal father as well. Other evidence may be considered by the court to establish paternity such as prior statements made by the alleged father to others or conduct indicating that he considers himself the father.
Should the mother and the reputed father marry at any time during a paternity action, the father is then deemed the legal father of the child and the child is considered to have been born within wedlock. The court can then dismiss the paternity action and seal the records from public accessibility.
If a summons and complaint is issued and served on the alleged father and he neglects to appear in court, the court can order a default judgment and order that the individual be declared the legal father. Of course as in any legal action, the parties can settle. In that case, they can sign a Consent Order whereby the alleged father is acknowledged as the legal father.
There are cases where the legal father learns that he is not the biological father and wishes to challenge the court order that established his status and ordered him to pay support. The father has to file a petition disestablishing his paternity and may have the court overturn the support order if the petitioning father meets the following conditions:
- Has newly discovered evidence that has come to this attention since the initial paternity determination
- Is current in all child support obligations or has just cause for being delinquent
- A scientific test was properly performed showing that he is not the biological father
- Did not marry the mother while acknowledged as the putative father
- Has not adopted the child
- The child was not conceived by artificial insemination while the legal father and the mother were in wedlock
- Did not act to prevent the biological father from asserting paternal rights over the child
- Did not acknowledge his paternity in a sworn statement
- Did not consent to be named as father on the child’s birth certificate
- Did not disregard a notice from a court or state agency directing him to submit to scientific testing
- Did not voluntarily promise in writing to provide support and was so ordered based on that promise
A third party who wishes to contest a father’s paternity may lack standing to do so. Other than the putative or alleged father, the child’s mother or the state seeking child support, the only other party who can file such a suit is a legal representative of a child seeking to establish a paternal relationship with a person who is allegedly the father.
These types of actions are complicated and will require the services of a seasoned family or domestic law attorney who can ensure that the petitioner meets the conditions to file the petition and has the necessary documentation and proof necessary.