Video answers from Jacksonville family law attorney A. James Mullaney about paternity issues in Florida family law.
I was served with Child Support papers. I am not the Father. What should I do?
Transcript
If you've been served with child support papers, you have 20 days to respond to the petition. Do not ignore the paperwork that was served on you. In your answer, you should admit or deny each allegation contained in the Petition. Then you need to sign the document and send the original to the Clerk of Court and a copy to the attorney on the other side. Make sure you keep a copy of the document for your own records. The petition will either allege that you are the father of the child or allege that you might be the father of the child. A DNA test is required if both or either party is unsure that the potential father is the actual biological father of the child. No test is required if both parties agree that the potential father is the actual biological father of the child. If you fail to respond to the petition within the 20 day period, the other side will eventually have a default entered in the case. This has the effect of requiring the judge to treat all the allegations contained in the Petition as true. This means that the judge will determine that you are the father of the child even if there has been no DNA test.
What happens in Florida when a Wife has a child that is not the biological child of her Husband?
Transcript
First, I will assume that both the Husband and the Wife know that the child is not biologically his and that the husband and wife did not adopt the child. This is a complicated situation since Florida law states that children born during a marriage are the legal children of the Husband. As a result, if the parties divorce the court must determine a time sharing schedule and establish a child support amount. In most of the cases that I've handled where this situation arrises, neither the husband nor the wife expects or wants the husband to pay child support. The problem is the judge has very few options. In order for the husband to avoid a child support obligation, he must have his legal rights to the child terminated. This can only be done if the court finds that the termination of parental rights is in the child's best interests. To show that the termination of parental rights is in the child's best interest, the biological father needs to file an Affidavit of Paternity in the Wife's divorce case. This affidavit needs to state the he is the biological father and that he intends to assume the role of father in the child's life. Similarly, the Husband needs to file an Affidavit of non-Paternity where he states that he is not he biological father of the child. Lastly, the divorce order needs to state that the parental rights of the husband are terminated. This termination of rights does not establish the legal rights of the biological father. This whole situation in greatly complicated if the biological father can't or won't sign the affidavit. Essentially, the court will not allow the child to be legally fatherless, so the husband may be forced to pay child support. The situation is also greatly complicated if the husband does not want to give up his rights to the child.
Can I force my child’s father to take a DNA test as part of a Florida paternity case?
Transcript
Yes, you can compel someone you think is the father of your child to submit to a DNA test as part of a paternity case. Similarly, if you are the father you can compel the mother to,submit herself and the child to a DNA test. If the alleged parent refuses to submit to the test voluntarily, you will need to get a court order that requires the alleged parent to submit to the test. Your request for a court order requiring the testing must include facts establishing a reasonable probability of the required sexual contact. The court could deny your request if the other side can prove that the sexual contact was not possible. In my experience, most requests for DNA testing are granted. An example of a denial would be if a mother alleged that the sexual contact occurred in June, but the alleged father proved that he was at sea in the Navy during June or when the child was conceived.
Who is the custodial parent when the parents were never married?
Transcript
The Florida Statutes state that a mother is the sole legal custodian of her child when the child is born to an unwed mother. Fathers have no such rights until granted by a judge. Basically, there are two ways for men to get rights to their children. The first way is when they are married to the child's mother. The second way is by court order. This happens in paternity and adoption cases. As a result of these rules, it is important for these fathers to know that if they want rights to their children, they have to start a paternity case where their legal rights can be established along with a time sharing schedule and a child support amount.
The father of my child refuses to pay child support. What can I do?
Transcript
To answer this question, I'm going to assume that there is no child support order already in place. If the father of your child refuses to pay child support, you need to file a paternity case. Other than time sharing with the child, the only other issue that comes up in a paternity case is the amount of child support. As part of a paternity case, the court will order a DNA test if the mother and potential father do not agree that he is the child's father. There does not need to be a test if there is an agreement that the potential father is the actual biological father. After paternity is established, the court will determine the amount of child support based on the Florida Child Support Guidelines. The guidelines use the following factors to determine child support: 1. both parent's incomes, 2. who pays day care and how much, 3. who pays for the child's medical insurance and how much, 4. how many nights each parent spends with the child over the course of a year. If a child support order is in place and the father is refusing to pay, the mother should look into filing a motion for contempt.