Fathers’ Rights (Paternity)
CLSMF provides legal advice and representation to parents that were not married and need to legally establish the father of a child, a parenting plan, child support, and other relief related to the child.
WHAT ARE MY RIGHTS?
Paternity is the term used for the legal process to establish a child’s father. If the mother of a child is not married to the father at the child’s birth, paternity might be an issue. The unmarried father of a child has no legal right to spend time with the child or to make decisions about the child, even if listed on the child’s birth certificate. The father must establish those rights through legal action like a Paternity Case, finding, or an Attestation of Paternity form.
An Attestation of Paternity form is allowed to establish Paternity only, by statute, and is sometimes provided when the birth certificate is signed. Even if that form is enough to establish paternity, it does not establish parental rights and responsibilities.
A paternity case may address a parenting plan, timesharing, parental responsibility, child support, health insurance, medical expenses, life insurance, and tax considerations regarding the child.
A Parenting Plan is a detailed legal document that orders the following:
- When a child spends time with each parent.
- How the parents will exchange the child.
- How to make major decisions concerning the child.
- How the parents will communicate with the child when the child is with the other parent.
- How the parents will communicate with each other.
- How the parents will share holidays and breaks.
- How the parents will handle extracurricular activities.
- What will happen if a parent wants to take a vacation with the child out of the state or country.
The Parenting Plan must abide with Florida Statute Section 61.13(3). (Read it in its entirety online here). To create a Parenting Plan, the court will determine the best interests of the child using specified “Best Interest Factors.”
Best Interest Factors
The court evaluates the best interests of the child by following the considerations below (paraphrased from the Florida Statute Section 61.13(3) for ease of understanding):
- Has each parent proven they are willing and able to encourage and allow a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when the other parent requests changes or adjustments? For example, has the other parent actually followed the schedule or has the other parent withheld the children or bad-mouthed you in the children’s presence?
- How will parental responsibilities be divided after the case and how many parental responsibilities will be delegated to third parties such as babysitters, friends, or family members? For example, does the other parent actually spend time with the children during their timesharing, or do they just drop off the children to another family member or friend?
- Has each parent proven they are willing and able to determine, consider, and act upon the needs of the child rather than their own needs or desires?
- How long has the child lived in a safe and comfortable environment and how important will it be for them to continue living in that environment?
- Where does each parent live? How much travel time is required for the parenting plan to work? The court will consider where the child attends school. This factor does not create a presumption for or against relocation of either parent with a child.
- What is the moral fitness of each parent?
- What is the mental and physical health of each parent?
- What is the home, school, and community record of the child?
- What does the child want? What the child wants might be considered if the court thinks the child is intelligent and aware enough to tell the court their wishes.
- How willing and able has each parent been to stay aware of important factors in the minor child’s life, such as the child’s friends, teachers, medical care providers, daily activities, and favorite things?
- How willing and able has each parent been to provide a consistent routine for the child, such as discipline and daily schedules for homework, meals, and bedtime?
- How likely is each parent to communicate with the other parent and keep them up to date on issues and activities regarding the minor child, and how willing are they to cooperate on all major issues when dealing with the child?
- Is there evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect? This will be considered regardless of whether there is a prior or pending action relating to those issues. If the court accepts evidence of abuse or neglect, it must state in writing that the evidence was considered when evaluating the child’s best interests.
- Is there evidence that either parent has knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect?
- How were parenting tasks and responsibilities divided before and during the divorce? Were any parenting responsibilities handled by third parties, such as babysitters, friends, or family members?
- How willing and able has each parent been to participate and be involved in the child’s school and extracurricular activities?
- How likely is each parent to maintain an environment for the child which is free from substance abuse? Substance abuse includes alcohol abuse.
- How willing and able is each parent to protect the child from the court case process by not talking about it with them, not sharing documents or electronic media related to it with them, and not making negative comments about the other parent to the child?
- What are the child’s needs based on their age and development? How willing and able is each parent to meet those needs?
- Are there any other factors that have not been mentioned but could impact your specific parenting plan, including the time-sharing schedule?
Parental Responsibility is the legal term for a parent’s right to make major decisions about their child. Usually, the court awards parents Shared Parental Responsibility.
Shared Parental Responsibility means parents must communicate with each other and coparent in order to reach agreement about the decisions they make for their child. Shared Parental responsibility doesn’t mean time-sharing will be split equally 50/50.
If the court orders shared parental responsibility over health care decisions, the parenting plan should provide that either parent may consent to mental health treatment for the child.
Shared Parental Responsibility with Ultimate Decision-Making Authority means parents talk to each other and attempt to reach an agreement; however, in certain circumstances, courts may award one parent with “ultimate decision-making authority” over specific aspects of their child’s life. If the parents are unable to agree on a decision, the parent with Ultimate Decision-Making Authority will make the final decision regarding the specific area. The specific areas include, but are not limited to, education, healthcare, or extracurricular activities. Courts will not award ultimate decision-making authority for all aspects of the child’s life.
Sole Parental Responsibility means one parent makes all decisions about the child. Parents may agree that one parent will have Sole Parental Responsibility, or the court may order Sole Parental Responsibility in cases if requiring the parents to make decisions together will be harmful to the child. The court can order Sole Parental Responsibility in a case with domestic violence.
Child Support is money paid by one parent to the other to help support the parent’s children. The purpose of child support is to make income available to the children between both parents’ homes. The child support guidelines use a mathematical formula set by law, which the court follows to create the child support amount. The Court almost always sets the child support amount based on the figure determined by the guidelines, but there are some rare exceptions. Usually, but not always, the parent who has less time with the children owes child support to the other parent.
The guidelines consider a variety of factors, such as:
- Each parent’s income,
- How many children are included,
- How many overnights each parent received through the Parenting Plan,
- How much a parent pays for health insurance for themselves and the children,
- How much a parent is paying for childcare,
- Whether the parent pays child support or alimony in a prior court case, and
- Other considerations.
Court orders about children’s health insurance and uncovered medical expenses must state who will be responsible for obtaining health insurance on the children. The court can order one parent to be responsible for health insurance, or that the parents share the expense. The court must also order which parent will pay the child’s uncovered medical expenses or whether the parents will share those expenses.
Courts can order one parent to carry a life insurance policy on their life, naming the child as a beneficiary. The purpose of an order of this kind is to make sure that money is available to the children, even if the parent paying child support dies. Life insurance must be reasonably available to the parent for the court to require them to pay for it.
Courts may order one parent to allow the other parent to claim the children for income tax purposes. If you want a court order explaining who will claim the children for tax purposes, you need to include a request in your petition. The forms do not include a selection for tax exemption information, so you will need to add your request to the petition.
WHAT DO YOU NEED TO DO?
The mother or the father of a child can file a Paternity case. The Florida Supreme Court has approved forms that can be used to file a paternity action on your own. The forms can be found at www.flcourts.org under the Family Law Forms section of the site, and contain detailed instructions to assist with completion and filing.
- Petition to Determine Paternity and for Related Relief, form 12.983(a)
- Summons, form 12.910(a)
- Family Law Financial Affidavit, form 12.902(b) or 12.902(c)
- Uniform Child Custody Jurisdiction and Enforcement Affidavit, form 12.902(d)
- Notice of Social Security Number, form 12.902(j)
- Cover Sheet for Family Court Cases, form 12.928
- Notice of Related Cases, 12.900(h)
- Application for Determination of Civil Indigent Status. This form can be downloaded HERE. You may also obtain a copy from your local clerk but remember to ask for it directly by name.
You should file in the county where the child has lived for the last six months. If the child has not lived in the same county continuously for the last six months, then you should file where the child currently lives or last lived with the other parent in the state of Florida. If the other parent has moved with the child to another state and has been away from Florida for more than six months it is possible that the State of Florida no longer has jurisdiction and you should consult with an attorney prior to filing the case.
“Service” is the process of sending court documents to the other party — delivered by a sheriff. This legal notification process informs the other party that the case was filed and provides them the opportunity to respond to the court.
After you have filed the paternity case, the clerk may help you by sending the documents to the local sheriff for service to the other party. If the clerk sends the documents to the sheriff then the sheriff will take the papers to the other party so they know about the case. There is usually a small fee for the clerk to arrange service on your behalf.
Upon receiving the documents, the other parent has 20 days to file a written response with the court and mail you a copy. If the other party does not file a written response, the clerk may enter a Clerk’s Default against them. You may also file a Motion for Default, which is a written request to the court to make a decision about a case. If the other party never participates in the case, the court will likely grant your Motion for Default and you will likely receive everything you have requested in your petition. Even if the other party has a default entered against them, they may still appear before the court. The court will want to make sure it knows what is in a child’s best interest before it enters an order. So, while the case is still open, the other party can present evidence about what is in the child’s best interest.
On the other hand, if the other party does file a written response, they will file an Answer, which might also include a Counterpetition. The other party is not required to file a Counterpetition, only an Answer. A Counterpetition is the other party’s request to the court. You are required to respond to a Counterpetition by filing an Answer. You must file your Answer within 20 days. You may answer the Counterpetition with form Answer to Counterpetition, form 12.983(d) which can be found online at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
A SUPPLEMENTAL PETITION IS FILED WHEN A PERSON SEEKS TO CHANGE A COURT ORDER BECAUSE OF CHANGED CIRCUMSTANCES.
If the other party serves you with a Supplemental Petition, you may file an Answer only by using the Answer to Supplemental Petition, form 12.903(e). You must file the Answer within 20 days to avoid having a default entered against you. If the clerk enters a default against you, you may lose your right to participate in the case and may owe extra amounts of support. You must file your Answer with the same court where the other party filed the Supplemental Petition and mail the other party a copy of your Answer. It is possible to file a counterpetition with the answer, but you may need to contact a lawyer for assistance because there is no form for “Answer and Counterpetition to Supplemental Petition.
Form 12.903(e) can be viewed online at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
Forty-five days after service on the responding parent, each party is required to exchange certain financial documents, such as pay stubs and tax returns. The documents that the parents might need to exchange are listed on the Certificate of Compliance with Mandatory Disclosure, form 12.932. Parents do not file their documents with the court; they give them to the other parent. The form is the only document filed with the court. The form is completed by placing a check next to the item provided to the other parent, and is signed under oath before a notary or a clerk. If a person does not have a required document on the list because it is something they have never had, then there will be nothing to give the other party. If a document on the list is not in that person’s possession but is something they can get, such as a bank statement, the person needs to get the document and give it to the other party. The Certificate of Compliance with Mandatory Disclosure can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
Once each party has filed their initial documents as discussed above, the court may schedule a Case Management Conference, which is a hearing set by a judge to make sure the case moves forward. The Case Management Conference is typically not a time for the court to receive evidence from the parties. The court will likely check to see if the necessary documents are in the file from each party and may schedule mediation.
In most family law cases, the court will require mediation. Mediation is a process where the parties sit down with a neutral third party to work on resolving their case without the judge. The parties to a case may resolve all issues, some of their issues, or none of their issues at Mediation. Issues not resolved at Mediation are dealt with by the court at a final hearing or trial.
WHAT TO CONSIDER BEFORE TAKING ACTION?
Mothers of children who were born outside of marriage are legally entitled to all of the time with their children and are entitled to make all of the decisions about their children. Upon entry of a Parenting Plan, the other parent will likely receive time with the children and a right to be involved in the decision-making process. In cases where there has been domestic violence, the mother may not want the other parent to have time with the children or to be involved in decision-making.
When a court case is pending before the court or a final parenting plan is in place, laws about relocation apply. Relocation is when a parent moves further than 50 miles for longer than 60 days. The relocation law sets the rules that a parent must follow when relocating with the other parent’s agreement and rules to follow without the other parent’s agreement. A parent may not move with the children without following the relocation law. Failure to follow the relocation law can cause a parent to be forced to move back to the area where they used to live, pay the other party’s court costs, and could even cost them their time with the children. For more information, see the CLSMF webpage about Changing a Parenting Plan.
If the court establishes a person as the father of a child, they may be required to pay child support, carry health insurance, pay for uncovered medical expenses, and other child-related costs. The child will gain certain inheritance rights and potential public benefits rights that arise from the relationship with the father.
For people who are trying to file a case in family court in Florida, visit the Florida Courts webpage for a self help location in your county.
You may also email them at [email protected]