Florida law dictates that the mother of a child born out of wedlock is automatically considered to be the legal parent who is required to provide support for her child. However, if a child’s parents are not married to each other when that child is born, Florida courts will not automatically presume a man is the biological father and thus recognize the father’s duties and financial obligations to the child unless paternity is legally established. Take, for instance, this example.
Eight months ago, Jane Smith was living with her boyfriend, John Doe. A couple of months after moving in, John was told by Jane that she was pregnant and she believed that they could raise the child together. However, one month before the baby was born, Jane and John broke up. When the baby was finally born, Jane felt she was entitled to child support from John because she believed him to be the biological father. Establishing paternity for children born out of wedlock is important to both the mother and child because it is essential for the child garnering the same rights as children born to married parents – including child support and inheritance.
For Jane and John, the easiest way to establish paternity would be to bypass a court proceeding and sign an affidavit saying the child belongs to both of them. When a mother completes the affidavit she attests that she was unwed at the time of the birth and that the man identified in the affidavit is the biological father of the child. When the man completes the affidavit of paternity, he swears he is the biological father of the child and he will be responsible for the medical and financial needs of the child until adulthood. But this is really only an option when the identity of the father is certain. This administrative procedure is most convenient because it can be performed at the birth hospital before the baby is discharged or at the local Child Support Enforcement Office. If completed at the hospital, the parents, like Jane and John, typically, do not have to pay a fee. But if done outside the hospital at the Child Support Enforcement Office, and Jane and John were from Fort Lauderdale or Miami, Florida, they could sign an affidavit at a Child Support Enforcement Office located in either Broward or Miami-Dade County.
But what if Jane was uncertain that John was actually the father because she got pregnant the month before he moved in with her, and she had also been seeing another man? She never told John about her uncertainties, but John eventually discovered these facts before the child was born. In this situation, although there is a possibility he is the father, John would most likely question whether he was the father, and signing an affidavit attesting to his paternity would probably not be in his best interest. In this situation, if Jane wants child support, she would most likely seek judicial help through the issuance of a court order to establish John’s paternity. Through judicial action, John can either sign legal documents establishing paternity or support, or both, which the court will then adopt as a stipulation, or the court may hold a hearing to establish paternity and support. If John fails to stipulate that he is the father, the court must hold a hearing to determine paternity of Jane’s child. In this hearing, the court may order genetic testing. If the court found John to be the child’s father, the court must then order support for the child.
In Florida, the child support guidelines that govern divorce proceedings also apply to determine, modify, or enforce child support for children born out of wedlock. This may include authorization of retroactive child support to the date when the parents did not live together in the same household with the child, but cannot exceed 24 months before the filing of the hearing to establish paternity. Therefore, if John failed to pay child support during the month before and the two months during the court ordered hearing to establish paternity, because the court determined John to be the child’s father, he must pay child support for those 3 months and for future child support expenditures.
If you are the mother and presumed father of a child born out of wedlock, consult an attorney to determine your child’s rights to financial and medical support.