In Florida, If a married woman has a baby the husband becomes the legal father and is put on the birth certificate pursuant to Fla. Stat. Sec 382.013(2).
If the husband is not the father and anyone contests that fact, a court will have to make a ruling as to who the legal father is. It is not easy to declare a husband to be not the father because marriage will establish the husband as the legal father even if he is not the biological father and once paternity is established. This is especially true if the husband has a relationship with the child. “It is conceivable that a man who has established a loving, caring relationship of some years’ duration with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children’s best interest to wrench them away from their fathers. The law does not require such cruelty toward children.” Department of Health and Rehabilitative Services vs. Privette, 617 So. 2d 305 (Fla. 1993). If the connection with the legal father is strong enough, the courts won’t even allow a DNA test.
If another man wants to file a petition to say that the husband of a mother is not the father he is going to have an extremely difficult time establishing that without cooperation from the mother and husband. The only cases that have allowed the biological father to personally establish his paternity have been in scenarios where the marriage was so broken the husband and wife were separated. Lander vs. Smith, 906 So. 2d 1130 (Fla. 4th DCA 2005).
If the mother of the child is not married, the father may sign a “voluntary acknowledgement of paternity” that allows him to be put on the birth certificate as the father of the child. Beyond that, a DNA test must be requested from the court so that a court can find the unmarried biological father to be the father. In Florida, if the father “makes an honest out of her” and marries the mother the child will be established as his, legally. Williams-Raymond v. Jones, 954 So. 2d 721.
Without any of these automatic triggers for paternity you need to go to court to establish it and Florida law allows mom, dad or the child to go to court to do so, “Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.” Fla. Stat. Sec. 742.011.
In Florida, for many fathers this court process of being declared the father starts in administrative court during child support proceedings. The father can at any time declare his paternity in the process but if the father contests his paternity within 20 days of receipt of notice, the father automatically goes out of the administrative court and goes to circuit court. Circuit Court will then take testimony to determine who the father is but usually orders a DNA test.
The jurisdiction of a paternity case will be in Naples, Florida if the child lives in Collier County, Florida.
Subsequent to establishing paternity, the father can then petition the court to give the child his last name.
Establishing that you are not the father is a completely different matter which I addressed in this article.
If you’re a father, do your child a favor and establish that you are the father. It is the first step in the process of having a normal, healthy father-child relationship. Contact my Naples, Florida office to learn how to get started.