Articles Posted in Paternity

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Whenever possible, Florida courts give custody of children to the children’s legal mother and legal father. Custody is defined as physical residence with a parent or other legal guardian and decision-making power related to the children’s education, medical care, and other important life events. Usually, the legal mother and legal father are the child’s biological mother and her husband. If the mother is not married, a man can become the legal father by filing a Voluntary Acknowledgement of Paternity with the court. In the case of adoption, the court transfers parental rights from the biological parents to the adoptive parents.

Once you are the legal parent of a child, it is difficult to lose your parental rights. The courts acknowledge that parents are only human, and that it is almost always in a child’s best interest to stay with his or her own parents. For example, having a criminal record or a diagnosis of a mental illness or addiction does not, by itself, mean that the court will reduce or take away your right to spend time with your children or make decisions about them. Involuntary termination of parental rights only happens when it is impossible for the parent to provide adequate care for the child or when the parent has seriously endangered the child. Continue reading

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According to Florida law, if a woman is married at the time that she gives birth, her husband automatically becomes the legal father, even if neither spouse claims that the husband is or could be the biological father of the child. (This most often happens when the mother is separated from her husband, but they have not yet finalized their divorce.) If the woman is unmarried, then it is fairly simple for the child’s biological father to establish legal paternity; the courts usually do not even require a DNA test. If the biological father wants to establish paternity, but the mother is married to someone else, however, then he faces an uphill battle. Miranda Wilkerson is a child in whose custody case the mother’s husband’s status as legal father was a determining factor, but her case is also complicated for several other reasons.

Details of the Miranda Wilkerson Case

Trista Crews and Donald Coleman met and began their relationship in 1997, when she was 14 and he was 38. They married when Trista was 16, with Trista’s mother Rita Manning giving consent for her underage daughter to marry. Nonetheless, Coleman eventually had to register as a sex offender because of the age difference in his relationship with Trista. They would go on to have three children together before separating in 2007.

Trista was separated from Donald Coleman at the time of Miranda’s birth, and he filed for divorce at around that time because he doubted that he was Miranda’s biological father. About a month later, Trista died in a car accident, and her mother Rita Manning assumed responsibility for Miranda’s care. After a long custody battle between Manning and Coleman, a judge finally awarded custody of Miranda to Coleman, who was then living in Georgia. Miranda was then three years old, and she had lived with her grandmother almost since birth. Miranda’s biological father has since tried to get custody of her, but currently available news reports offer few details about that aspect of the case. Continue reading

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Except where adoption is involved, many people think of genetic relationships as the most important thing that links parents and children. In Florida’s family law system, that is not always the case. It is entirely possible for a man to claim paternity and to be named as the child’s legal father without DNA testing. If a man agrees to be named as the father on a child’s birth certificate, most of the time, no one questions it. In fact, Florida courts usually only order DNA paternity tests when no legal father has been named, and the court needs to decide who is responsible for paying child support for a child whose mother has demonstrated financial need.  The rest of the time, biology is not the sole determining factor. The recent Flynn v. McCraney decision is just one example of when a Florida court ruled not to award legal paternity to the child’s biological father.

The Mother’s Husband is the Child’s Father by Default

If the mother is married at the time of the child’s birth, her husband becomes the legal father by default. Why is this the case in an age when DNA paternity testing is so accurate and so inexpensive? Part of the reason goes back to the days before DNA testing was available. Before the 1990s, alleging that the father of a married woman’s child was someone other than her husband required nothing short of character assassination, and it was almost impossible to prove.  Even now that matters of biological paternity are so easy to determine through DNA testing, Florida courts still prefer to keep families intact. If a child has been raised by two parents since birth, the courts favor arrangements where those two adults remain the primary caregivers until the child reaches adulthood. (This is the logic behind the trend toward timesharing in Florida’s parenting plans.) Continue reading

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One of the criticisms most frequently leveled at family court systems in the United States is that they treat fathers as walking checkbooks, imposing heavy child support obligations on them and invading their privacy to ensure that they pay those obligations, meanwhile doing little to support their efforts to have a meaningful relationship with their children. In recent years, the family court system has changed some of its practices to give more importance to the rights of fathers to be involved in the lives of the children they support. Consider that parenting plans now give parents a wide variety of options as to how to divide time with the children and decision-making authority among parents.

The Parker v. Parker case represents a worst-case scenario for fathers. If all you knew about the case were news headlines, you would recognize it as the case where a man disproved his paternity, but the court ordered him to keep making child support payments for his ex-wife’s son.  In fact, the court made this decision based on the fact that Richard Parker waited a long time (more than a year after the divorce was filed) to challenge his paternity and that his main motivation seemed to be a desire to get out of paying child support.  The court ruled that it was in the child’s best interest not to take away the only father he had ever known.

How to Avoid Paternity Fraud

The best way to deal with paternity fraud is to prevent it from happening in the first place. Few things are more disruptive to a family than finding out that a child’s biological father is someone other than the legal father who shares a strong emotional bond with the child. With the widespread availability of DNA testing, it is easier than ever to prevent situations where parents question a child’s paternity only after the child is old enough to be affected by the situation emotionally. Continue reading

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Florida’s tradition of family law acknowledges that there is more than one way to be a father.  The child’s biological father is not necessarily the child’s legal father. In fact, when establishing paternity, the courts do not always order DNA paternity tests. Sometimes a Voluntary Acknowledgement of Paternity is all you need. Things get more complicated when it comes to matters of child support, however. Is the biological father always the one who should pay child support for the child? The answer, according to Florida case law, is that it depends, and not always in the ways you would expect. The decision in the Parker v. Parker case will surprise many people, but the reasons behind the decision reveal a lot about what it means to be a father in Florida.

The Facts of the Parker v. Parker Case

Parker v. Parker made news as the case in which a Florida court ordered a man to continue to pay child support for his ex-wife’s son even after a DNA test proved that he was not the child’s biological father.  When Richard Parker and his wife Margaret initiated their divorce, their son was more than a year old. The court ordered Richard to pay $1,200 per month in child support.  Richard fell behind on the child support payments, and the court tried to enforce payment of them. Richard responded by expressing doubt that he was the child’s biological father, as Margaret had been unfaithful to him during the marriage.  Even after the family underwent DNA testing, and the results showed the Richard was not the biological father, the court required him to continue paying child support. Why would a court order a man to pay child support for a child of whom he was not the biological father and whom he did not adopt? Continue reading

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In recent decades, Florida courts have shown more appreciation for the important role of fathers in their children’s lives. For example, the idea of a mother having “primary custody” of the children while the father only has “visitation” is mostly a thing of the past. Today, parenting plans contain a lot more detail and nuance about the role of each parent. All of this is simple enough when it comes to fathers who have gone through a divorce from the children’s mother.  But what about when the child’s parents were never married to each other? Then is it easy for the mother to keep the children away from the father?  In order for unmarried fathers to be able to defend their legal rights to a meaningful relationship with their children, they must first legally establish paternity.

What Rights do Fathers Have?

You might think that going through the process to establish paternity is unnecessary red tape, especially if you communicate well enough with your child’s mother that there have never been any major disagreements about the child. You might have an unwritten agreement where you take care of the child at certain times and provide some financial support to the child. Without legally establishing paternity, though, anything can change. What if a new partner enters the picture? What if one of you decides to move out of state? Continue reading

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A parenting plan is a written contract between the parents of minor children.  Parenting plans are subject to court approval.

At a minimum, a parenting plan must include the following: (1) A description as to how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; (2) the time sharing schedule arrangements that specify the time that the minor child will spend with each parent; (3) which parent will be responsible for health care; (4) school related matters, including the address to be used for school boundary determination and registration; (5) other activities that the minor child may be involved with and who shall bear the expense of those activities; (6) the various methods in which the parents shall communicate with the child.

A parenting plan can be as detailed as the parents require, and can provide for any specific situation concerning the family.

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Just because you are not married to the mother of your child does not mean that you do not wish to play a role in your child’s life. Unfortunately, in order to legally gain parental rights, you must take certain steps under the law in the state of Florida. In some cases, gaining legal paternity can be relatively simple and will requiring signing a form and filing it with the state. If the mother of your child tries to fight against you paternity claim, however, you may find yourself facing a legal battle in court. One recent case that was resolved shows how difficult some paternity cases may become.

Jason Patric Wins Paternity Case

Jason Patric is an actor who had been fighting for legal paternity rights to his biological son for two years. When Patric’s former girlfriend wanted to have a child, he agreed to offer his sperm for her to use for in vitro fertilization (IVF), which resulted in the birth of a son. Patric was not listed on his son’s birth certificate and he and the mother did not sign a parenting agreement. However, Patric states that the two parents rekindled their relationship and that he participated in raising the boy. When the relationship again soured, Patric states that the mother refused to allow him to be in contact with her son.

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Over the years, I have had the opportunity to discuss child support issues with many parents. A frequent question that often arises is whether one parent has the right to waive the receipt of child support from the other parent?

The answer to this question is simple, NO! There are scores of cases in Florida which clearly state that the entitlement to child support is a right that belongs to the child, not to the parent, and the parent has absolutely no right to waive receipt of those funds.

What about the situation when a father proclaims his desire not to have any part in the child’s life, in exchange for a release of his child support obligation. Will this work to release the father from his obligation? Again, the same answer, NO.

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1182574_no_sex.jpgYes, it is possible to have the court vacate a paternity decree after it has been entered, even if years have passed by. The remedy is found in section 742.18, Florida Statutes (2006).

This statute creates circumstances under which a male may disestablish paternity or terminate a child support obligation when he receives “newly discovered evidence” demonstrating that he is not the biological father of the child. Section 742.18(1)(a), Fla. Stat. (2006).

The statute does not require a petitioner to prove fraud or duress when attempting to disestablish paternity. Rather, the statute clearly establishes the necessary allegations, requisite trial court findings, and conduct that would prohibit disestablishing paternity. Section 742.18(1)-(3), Fla. Stat.(2006).

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