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Biology Does Not Guarantee Legal Rights for Fathers in Florida

By Silvia Lopez Barrera
Mon, Apr 12, 2021 at 10:20AM

Biology Does Not Guarantee Legal Rights for Fathers in Florida

A “Prospective Parent” is a person who claims to be, or has been identified as, a person who may be a mother or a father of a child. A prospective parent, by definition, has not yet been legally recognized as the child's parent. The distinction between a prospective parent and a legally recognized parent is crucial. While it is certainly possible to have a prospective mother, most of the uncertainty usually lies with the identity of the child father. As you will see below, the biological father of the child, is not always recognized as the legal father of the child. When the paternity of the child is uncertain, it is crucial to correct these issues right away, for the sake of the child and the family in general.

 

The child's legal father has parental rights over the child. Among other privileges, that means that; the father has visitation rights with the child, and has a right to a contested hearing if the Department wants to move or medicate the child. The legal father also has certain obligations, such as child support. If the legal father is considered indigent, he will be provided with a State funded attorney who will help him get the child back from the Department of Children and Families.

 

A prospective father has no legal ties or obligations to the child. While a prospective father might be entitled to notice of hearings, he has no visitation rights with the child, and he is unlikely to be provided with a State funded attorney. Often times, a prospective father is the child's actual biological father. When this happens, it leaves the one man that actually has biological ties to the child, without a say over what happens to his child.

 

In a Florida Dependency Case, the legal father of the child can be automatically established in one of two ways, through marriage and / or the child's birth certificate. If the mother was married to a man at the time the child was conceived, or born, that husband is the child legal father, regardless of whether he is the child's biological father. Also, the man who is listed as the father on the child's birth certificate is recognized as the child's “legal father.” If the mother was married at the time, hospitals in Florida are required to place the husband's name on the child's birth certificate. However, this does not always happen. If the man listed as the father on the birth certificate is not the mother's husband, the husband will be recognized as the legal father of the child over the man listed on the birth certificate.

 

There is a third less common way of recognizing a legal father; a legal father can be adjudicated through a previous Court Order. For example, a Judge may have adjudicated him the legal father in a separate paternity or child support case. If none of these scenarios apply, the man in question is likely a prospective father.

 

The Florida statutes and case law that distinguishes a prospective father from a legal father can be antiquated. Often times, we find that it leaves a biological father with little to no say in their child's fate. More often than not, we find that it leaves a husband with legal rights and legal obligations over a child that is not his. Furthermore, the Court can find that the husband has abandoned or neglected his legally recognized child if he refuses to be involved.

 

 

While there are ways to remedy these issues, they can be cumbersome and confusing. An experienced dependency attorney can help explain Florida’s complicated paternity case law and how to overcome the presumption. 

 

Getting divorced can be a daunting and expensive luxury for many. However, it is important to know that if a couple remains married, that Husband will be legally responsible for the Wife’s future children, regardless of biology. In the unfortunate event that the child is taken into custody by the Department of Children and Families, an attorney can help you by filing the appropriate motions to make sure that the “right father” is being held accountable. Our attorneys can also guide you through divorce proceedings so that this does not happen again.

 

For an experienced attorney who can answer your dependency and divorce related questions - give us a call at (386) 310-0061.


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