On the heels of Father's Day don't forget what to do to be a dad, at least in the eyes of the state.
There are three types of fathers in this world:
- Those that are biologically the father;
- Those that are legally the father; and
- Those that are biologically and legally the father.
Under Florida law, there is a clear distinction between a biological father and a legal father. There are many different scenarios where the distinction between a biological father and a legal father makes a huge difference.
In my experience, the difference between a biological father and a legal father most often becomes an issue is when a couple has a child, lives together to raise the child for a period of time, and then breaks up. It is very common for couples to avoid marriage and yet live together as a family.
My plea is that for couples that live together, share a child, and are not married, to at a minimum get a court order establishing paternity. This protects both the mother and father in the long run.
Too many times I have had an unmarried father come into my office and say that he and the mother broke up, and the mother has now left the county, state and sometimes the country.
He proclaims, “I am the father, I have rights!”
I then ask a few questions:
- Did you execute the birth certificate under penalty of perjury witnessed by two witnesses?
- Has the Department of Revenue held a proceeding to declare you the legal father?
- Have you been declared the legal father in a dependency proceeding?
The remaining ways of determining paternity for a child born out of wedlock are contained in section 742.10, Florida Statutes, however, their applications are usually few and far between.
(Notably, other statutes under Florida law have some very rare ways of establishing paternity that I hardly ever run into. For instance, if the parents of a child born out of wedlock later marry, the child is deemed a product of the marriage.)
Most often the answer to the basic three questions above is that the father has not been declared the legal father. So after I have asked my questions, and after the unmarried father has proclaimed that he is the “father and has rights."
I have the terrible burden of saying, “you may be the biological father, but Florida has not yet recognized you as the legal father... you have no rights yet.”
Establishing a father’s legal rights are simple, especially when the couple is still together. A stipulation and a few other papers filed with the court will protect both parties and hold each accountable to the other in tragic times.
So the message this week is that we should protect fathers and mothers and the children.
Let’s get paternity established as a matter of law.
Let’s go beyond being a biological father and obtain the state of Florida’s recognition that you are the father.
Let’s establish paternity. Let’s do it early.
Let’s do it before there are any issues in the relationship.
And let’s do it for the wonderful child that grants his or her parents the pleasure of a Father’s—and Mother’s—Day.