Children Born Out-of-Wedlock – Does the Father Have Any Rights?

Child Custody Lawyer Duke Fagan answers this question.

In the last few years, I have regularly received calls about this issue.  The short answer to this question in Florida is, “No”.  A child born outside of marriage is the legal child of the mother only.  Under Florida law, there are two types of fatherhood, biological fatherhood and legal fatherhood.  A child born as the result of an intimate relationship between a man and a woman has a biological father – the man whose intimate relationship with the mother caused her pregnancy.  The biological father is also the legal father if the man and the woman were married at the time the child was born.  The marital status of the parents on the date of the child’s birth is the determining factor here.

If the biological father of the child was not married to the child’s mother (and if the child’s mother was not married to another man) at the time of the child’s birth, the biological father is not the legal father of the child.  Why is legal fatherhood important?  Because biological fathers who are not also the legal fathers of children born outside of wedlock have no rights to their children.  The rights of a father include the ability to spend time with the child, have a say in the important decisions in a child’s upbringing, such as education, health care, and religious training, and sharing in the financial responsibility of raising the child.   The good news is that the law provides a remedy for men who father children outside of marriage.  That remedy is called a paternity action.  As a Family Lawyer I have been handling paternity suits for almost 20 years.  I will do my best to answer your questions and explain this legal process to you.

Please note:  the biological father of a child who is born when the mother is married to another man is governed by a different set of laws.  If you find yourself in that circumstance, please click here.

A paternity action or paternity suit is a legal action that determines the biological and legal fatherhood of a child born out-of-wedlock.  It is like a divorce between two people who have a child but were not married to each other when the child was born.  A Final Judgment of Paternity will legally determine the following issues:

Paternity – who is the biological and legal father of the child?

Shared Parental Responsibility – how much participation each parent will have in the major decisions regarding the child’s upbringing?

Time-sharing – where the child will live the majority of the time and how much time the other parent will have with the child?

Child Support – Who will pay child support and how much will be paid?

In a paternity action, there are no issues of property division or alimony since the parties were not married.  

The filing of a paternity suit does not make the biological father the legal father and the mere filing does not determine a father’s rights –  the final judgment issued by the court at the end of the suit is what makes the biological father the legal father and this judgment is what gives him all of the rights, privileges, and responsibilities of fatherhood.

What if your name is on the Birth Certificate?  This is good because it is a sign that you acknowledge your fatherhood and because it helps you after a paternity suit is filed, however, it does not give you any rights as a father.  When you have voluntarily put your name on the child’s birth certificate and a paternity suit has been filed, there is a legal but rebuttable presumption that you are the biological father.  This can eliminate the necessity of proving your biological fatherhood during a paternity action, but putting your name on the birth certificate does not make you the legal father.  ONLY A FINAL JUDGMENT OF PATERNITY MAKES YOU THE LEGAL FATHER.  Until you receive this judgment from the court, you have no rights as a father. 

All children need a loving, caring, and participating father.  If you want to be an important part of your child’s life, call Child Custody Lawyer Duke Fagan at (904) 733-1234.