Practicing Family Law Since 1995

Paternity Law

Information and Issues on Paternity law in Florida

Below are some general issues and answers about Paternity Law in Florida.

Question: Do father’s have rights as to paternity of a child when they are not married to the mother, but the mother is married?
Answer: A child born to an intact marriage is presumed to be the child of the husband. The husband is the legal father even if he is not the biological father. So, a man who has an affair with a married woman, and a child results from the affair, has no rights to the child unless he can successfully bring a lawsuit to establish legal paternity of the child. If it is not in the best interests of the child for the child to have the biological father established as the child’s legal father, the court will not order it. Just because someone can prove he is the biological father will not automatically make him the legal father, nor will it necessarily mean he will win a case in court to become the child’s legal father. The judge will look at the history of the child with the father the child has known as his/her father, for example.

Question: How far back can child support be assessed against someone in a paternity action?
Answer: Usually, retroactive child support can go back two years from the filing date that a mother or someone who had legal standing to file for child support filed an action for child support. The father sometimes owes retroactive child support and medical expenses related to the birth of the child. The law used to be able to go all the way back to the date of birth, and it was changed to restrict the claim to two years prior to the date of filing. Every case has a different set of facts, and if the child was born prior the date the statute was changed, exceptions might apply. This is why an attorney needs to be consulted and case law for your specific jurisdiction reviewed.

IMPORTANT FACT: The Department of Revenue (DOR) sues for child support but cannot, by law, enter any orders for establishing court-ordered contact schedules. Seek legal advice about how to get court-ordered contact if you have a (DOR) case and want to have contact with your child or children.

Question as to Jurisdiction: If a child is born in Florida, but lives in another state, can a paternity case be filed in Florida and will the court in Florida have jurisdiction?
Answer: Strictly under the law as to jurisdiction, one factor for establishing “long arm” jurisdiction is for a child to be born in Florida. So, a paternity case could be filed in Florida when the child lived out of the State of Florida, and alleged that Florida had jurisdiction based on the fact that the child was born in Florida. This does NOT mean that the case will remain in Florida, BUT if there was not a case previously filed in the other state, one could argue that it was an extreme financial hardship for the Florida parent to have to go out of state to pursue the paternity action and the case might remain in Florida. There are two issues: jurisdiction and venue to consider.

Determining Jurisdiction and Venue:
There are procedures that the courts in two or more states follow to determine in which state (or country) a case should be. The Uniform Child Custody and Jurisdiction and Enforcement Act would also be relevant and the fact that a child is resident in a state for six months or more makes that state the home state of the child, and it is likely that issues about a child are going to be determined in a court in the child’s home state, at least initially. If the child is in danger, and needs to be removed from his or her home state, then Florida could become the state to determine the issues if the authorities put the child in the care of a parent living in Florida. Also, sometimes the child does not have a home state because he/she has recently moved, and if a parent lives in Florida and it is in the child’s best interests to relocate to Florida, then the fact that the child was born in Florida might be sufficient for the Florida court to take jurisdiction and hear the issues in the case. Jurisdiction and venue are complicated issues.

Question: Does the Relocation Statute apply to paternity situations?
Answer: Some judges rule that if a paternity action has not ever been filed, a mother can move anywhere she wants with a child, even when the father is named on the birth certificate. Other judges take a more conservative approach. Case law through the appellate courts needs to address this issue so that all children in Florida have the same protection under the law as to not being deprived contact with their father.

This information is not to be used as legal advice.
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