Paternity Claims Can Extend Beyond Death
Knowing who one’s parents are is a fact taken for granted by most children, but there is a distinct difference between being told a particular person is one’s mother or father, and whether the law recognizes this person as a parent. Any woman that gives birth to a child, not including surrogates, is automatically considered to be a child’s legal mother, and immediately receives full parental rights. Determining a child’s male parentage is not always so easy, and it may be necessary to establish paternity before a man can exercise any parental rights or be compelled to fulfill any parental obligations. Typically, paternity is established when a person is still a minor, but he/she can take action to legally confirm paternity as an adult. An unusual paternity case involving famed surrealist painter, Salvador Dali, was filed by a woman claiming to be his daughter through an affair with a domestic servant led a Spanish court to authorize an exhumation of the body so DNA testing can take place. Among other consequences, establishing paternity gives the child the right to inherit from the parent’s estate, and the Spanish woman claiming relation to Dali could receive one-fourth of his estate if paternity is confirmed. Florida has several methods of establishing paternity that range from an easy administrative process to potentially contentious litigation. A discussion of the difference between a biological father and a legal father, as well as an overview of the available procedures used to determine paternity, will follow below.
Biological vs. Legal Father
People tend to instinctively associate a person’s biological father as the father recognized by law. However, the two are not mutually exclusive. A legal father has the rights and responsibilities of parenthood, including custody rights and child support obligations, but this status is only conferred through marriage, adoption or court order. Thus, if a married woman fathers a child with a man who is not her husband, the law would view the husband as the legal father despite a lack of genetic connection.
If a couple is unmarried, and there is no dispute over paternity, the state allows the couple to complete and file a Voluntary Acknowledgement of Paternity, which is commonly done at the hospital following childbirth. This acknowledgement becomes binding after 60 days, with an extremely limited ability to set it aside, and grants the man parental rights over the child. Given the permanent nature of these documents, fully considering the consequences before signing is extremely important.
As alluded to above, if a woman is married when the child is born, the husband is automatically considered the legal father, even if the couple was not married at conception. Further, if a couple has a child out of wedlock, it is possible to marry later and legitimize the paternity of the child if the man is the biological father.
Finally, if there is disagreement or uncertainty over paternity, a court order will be necessary to settle the issue. The mother, the alleged father, and a representative acting on behalf of the child are all eligible to petition a court to determine paternity. A court can decide paternity based upon outside evidence, genetic testing or a combination of both. Evidence, other than genetic testing, offered to show paternity would relate to the nature of the parties’ relationship and any conduct by a party that tends to prove or disprove paternity. If a judge finds sufficient evidence that the alleged father should be declared the legal father, the man will gain the right to make decisions on the child’s upbringing and to seek parenting time. If paternity is not established, the man will have no right to have a say in the child’s, but will also be relieved of the responsibility of providing for the child’s needs.
If you have questions or concerns about the paternity of a child, you need the advice of an experienced family law attorney regarding the best course of action to achieve your desired result. Tampa Bay’s All Family Law Group, P.A. can assist with drafting a parenting plan if an agreement is made, or take charge of representing your interests in family court. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
by Lynette Silon-Laguna Google+