Paternity in Florida

Having children and growing your family is not always what the cinema makes it out to be. It is not always romantic, and it certainly does not run as smoothly as it may be portrayed. While it can be incredible, it can also be messy – and let’s admit it, life can be messy. But while it is definitely a blessing to have children, and quite honestly the biggest adventure of your life, the act of having children can be… well, a little interesting. 

Regardless of your relationship status (complicated marriage, unmarried, or basically a relationship built on a crazy night out with the man you swiped right on the night before) there are several legal factors that go into what determines the paternity of your child and the legal rights of the father. Before we get down to the nitty-gritty, let’s touch on what paternity actually means. 

According to the Merriam-Webster dictionary, paternity is “the quality or state of being a father.” A paternity action is the legal proceeding that establishes the rights and obligations of the child’s father. These proceedings determine the legality of the father on a state level. This legal acknowledgment of paternity can potentially help you (the mother) petition for child support. 

That’s correct, ladies! This blog is all about who is legally recognized by the state of Florida as the father of your child. Now, we understand that you are probably thinking that the father of your child must be who you had relations (ahem… sex) with. Correct? Well that is not entirely true.

Determining The Father

Determining the paternity of the father can be broken down into two categories. The first, according to the state of Florida, is determined by if a woman gives birth and is married. This means that the legal father of a child is her husband. The second category of paternity is determined by going to court and petitioning to establish paternity with the state. But what happens when you are not married or had a child with someone other than your husband? Ooops! That got complicated…

Let’s start with the basics. In many states, including Florida, there are two types of paternity – legal and biological. That’s it, folks! That’s the tea. Let’s dive in.

Biological Father

For the most part, a biological father is pretty self-explanatory. The biological father is the man whose DNA is shared with the child. In the state of Florida, unless you are unmarried at the time of birth, there is no further action required. When married and giving birth, at least here in beautiful sun-kissed Florida, the biological father has shared rights with the mother, even if they divorce after giving birth.

This is where it gets cute. IF you are unmarried from the biological father at the time of birth, the state will NOT recognize them as a legal guardian of your child. Even though there is shared DNA, the State of Florida still requires you to petition for paternity. According to Florida statutes, the biological father can petition for paternity anytime between birth through the child’s 18th birthday. These petitions of paternity are typically determined through a genetics test.

With that, if you are unmarried and have an amicable relationship, the earlier you petition for paternity, the easier the process will be.    

Legal Father

In the state of Florida, the legal father of a child is recognized as the person who is legally responsible for the child. This person can be the biological father, an adoptive father, or even a close friend. Realistically, it can be anyone that the courts deem as the “legal” father.

This specific father has the same rights as the mother regarding custody, how the child is raised, time-sharing, and much more. In the case of divorce, regardless of whether the legal father is biological or not, you should still prepare for a custody battle because the state of Florida will see them as a legal party.

In either category, you will need to take the appropriate steps to establish the legality of your specific paternity case. People often assume that the name listed on the birth certificate at the time of birth is the legal paternal father. Unfortunately, that is not the case. During a petition for paternity, the courts will and can overturn the birth certificate. Yikes! 

Rights of the Mother

Just like any other family law case, both parties involved have a path to maneuver. If you are a single mother or your child was born out of wedlock, you automatically have full rights and custody of your child. The state of Florida tends to lean on the side of the mother, and in any court case, this gives you the upper hand. However, if you are not capable of taking care of the child on your own the Florida Department of Revenue can issue a court order to petition for paternity – especially if a mother requests government assistance.

On the flip side, if the father denies paternity, won’t sign the appropriate affidavit, or ceases communication with the mother, the mother still has options. And we like options… The mother in turn may file a court action to establish paternity. If the father does not comply, he may risk being held in contempt of court. This can lead to high fines and potential criminal charges. Once the court adjudicates the father’s paternity, the mother is entitled to retroactive child support in Florida.

Why is Establishing Paternity Important?

Establishing paternity helps you and your child navigate the intricacies of life a little easier. From child support to medical history, having an understanding of who the legal father is can help all parties. Here’s how:

  1. Financial – If you are a single mom, it can be hard to plan for your child financially. With a legal settlement with the legal father, you will be able to collect child support.
  2. Inheritance – If the legal father passes away, your child will have the opportunity to collect their benefits like social security, disability, Veteran’s benefits, and life insurance. 
  3. Medical – Establishing paternity of the biological father can help your child understand their medical history from both sides.
  4. Insurance – If the legal father can pay for health insurance, the child would be able to receive coverage through either parent. 
  5. Identity – Representation and self-identity are essential. Allowing your child to know their legal father helps them have a better understanding of themself.
  6. Relationships – No matter your feelings towards the father, your child has the right to build and establish a healthy relationship with the other parent. 

That was a lot, and we barely touched the surface. Navigating through paternity cases can be as straightforward or as complicated as either party makes it. There may be further complications if other variables are involved, like sperm donors or an attempt to disestablish their paternity. Don’t you worry, we’ll cover those situations a different day!

Hiring competent and trustworthy lawyers that possess a little flare and a little sass is critical to any family law case. For over fourteen years, Kristi McCart and Laurel Tesmer have served the Riverview, FL, and surrounding Tampa Bay areas in Marital and Family Law. If you are seeking representation and want honest answers as a team who will fight for you, you’ve come to the right place. 

Give McCart & Tesmer a call today at (813) 498-2757 or click here to drop a line and schedule your free legal consultation today.

Now go forth and be wild… but not too wild because you know, paternity! 

The Rights of Unmarried Couples in Florida

rights of unmarried mccart and tesmer law

There are many benefits to marriage – higher tax deductions, another person to navigate life with, rights to property, children, and more. But what about the rights of unmarried couples? Living in Florida means no state tax, sunshine, white sand beaches, and benefits for unmarried couples! Our team has spent years understanding and working for those rights. So what rights do you have if you are navigating life with your partner but are not legally married?

Couples decide not to legally marry for a variety of reasons, such as:

  • Reduction or termination of Social Security or Survivor’s Benefits
  • Ineligibility for Medicaid and long-term care
  • Move one partner into a high tax bracket 
  • Increase tax liability 
  • Reduce or terminate alimony for recipient partner
  • Loss of Financial Aid for a college-aged child

For most of us, we have a pretty good idea as to if we want to marry someone or not, but for those of you who have yet to decide, there are a few things to prepare for to have a successful future with your loved one. From property rights to alimony and paternity to inheritance, there is a slew of legal documentation that can help set you and your partner up for success.

Property Rights of Unmarried Couples:

When you are married and own property together, you automatically have statutory rights to each other’s property. This property can be both tangible or intangible whether it is houses, cars, electronics, pets, intellectual property and so much more. For couples who are not married but cohabitate, you are not subject to various property laws. These laws that were set up to protect married individuals do not benefit the unmarried, however, this isn’t the end of the road. 

As your relationship blossoms so do your assets, and with this growth comes wealth. To prepare you for this growth we suggest you create a property agreement with your partner. This agreement is a legally binding document that states the ownership right per individual and states who is entitled to what in case of a separation. Without this agreement, there is no guarantee that you will be able to claim anything from the relationship as your own. Depending on your situation, this agreement may be the only thing protecting you from ending up with nothing. 

Inheritance Rights of Unmarried Couples:

Inheritance is one of those terms that tends to lend itself to drama. Whether you heard the words from one of your favorite true crime podcasts or heard it while watching one of your soap operas, you know that when a loved one passes inheritance is a big topic of discussion. 

For those who haven’t heard the term, inheritance means the passing down of private property, debts, privileges, rights, titles, and obligations upon the death of a loved one. But what does that mean for unmarried couples? Unfortunately, it means that upon the death of you or your partner, the other party has no legal right to your property. In unmarried cases, the next of kin or the parents of the departed is the next in line to be awarded your joint property.

Bummer, right? Well, don’t fret, you have other options besides getting married and that comes with your estate planning. If both you and your partner agree, you will have to name each other the Agent in a Power of Attorney as well as a Surrogate to make healthcare decisions. You will also need to name each other as a Personal Representative and beneficiary in your Last Will and Testament or Trustee and beneficiary in Trust.

Alimony Rights of Unmarried Couples:

You may have heard this term before, but alimony is a legal obligation of a person that requires them to provide financial support to their long-term spouse before and after a divorce. Alimony takes into consideration the quality of life that you and your former spouse created while in your relationship and awards the individual with the lesser income enough support to sustain life after a divorce. Unfortunately, when this comes to unmarried couples, you are not eligible for alimony. 

However, for those of you that are now divorced, receiving alimony, and in a new relationship, you need to be careful if you want to continue to receive your benefits. Although your last thought maybe marriage, cohabitating in an unmarried relationship may terminate your previously ordered alimony. According to Florida law, when the recipient of alimony starts to live with another person in a way that suggests they intend to live like a married couple, it could terminate the alimony or modify it downward.

Paternity Rights of Unmarried Couples:

In Florida, when an unwed couple has a child, the mother is presumed to have all legal rights to the child. Until a circuit court determines who is the legal father, the mother can decide all aspects of the child’s life. From where the child lives, what medical treatment they may need, and even if the child can visit with the biological father, the mother has all of the control.

Although many would believe that having the father’s name on the birth certificate of their child would be enough to prove legality, it is not. To be considered as the child’s legal father and retain custody of the child, the father must sign up for Florida’s Putative Father Registry to preserve his right to notice and consent in the event of an adoption or custody battle. The father will also need to consent to a DNA test, which does not automatically guarantee the father’s rights or timesharing, but will get them one step close to becoming the legal father of the child.

Once the legality of the father is proven, the father can petition the court in a paternity case and the court will enter a parenting plan which is a written directive of each parent’s rights and obligations to the child. The court will then determine the number of nights in a year the child resides with the Mother and the Father.  With this information plus each parents’ monthly income and child expenses, a child support amount will be calculated pursuant to the Florida Child Support Guidelines.

With all that said, there are a lot of factors to think about when deciding to stay unmarried with a partner. The Law offices McCart & Tesmer is here to help you with the process whether you are looking to start the estate planning process, needing a property agreement for a large purchase with your unwed spouse, or navigating a paternity case. For more information, call us at 813.498.2757 or email us at info@mccartandtesmer.com.