Articles Posted in Paternity

There are cases where a non-custodial parent is unemployed and has little or no income.  Even a person with little or no income can still have an obligation to pay child support.  This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income.  Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation.  The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation.   It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation.  This is accomplished in a number of ways.  People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting.  One way that the court system counter’s this is through the use of imputed income.  Sometimes this involves imputing minimum wage.  Other times, it is much more complicated and a vocational evaluator may be used.  

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation.  The courts do not always use imputed income to determine one’s child support obligation.  Most situations where it is used involve a parent that is unemployed or underemployed voluntarily.  In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage.  There are situations in which much higher income has been attempted to be imputed.  In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities.  A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it.  A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable.  A layoff or company downsizing could also account for why an Obligor is unemployed.  Trying to prove that someone is underemployed can be difficult and expensive.  One has to prove that there is work available and that the Obligor turned it down.  Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation.  One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy. 

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place.  A parenting plan can be agreed to or simply entered by the court.  However, once the plan is entered into the court as an order, it is enforceable through the court system.  Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child.  Florida’s child support guidelines specifically account for such.  However, not every parent takes advantage of all of the overnights that they are awarded.  Normally, you cannot retroactively adjust child support.  However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C). 

Unwed fathers may believe that it is unlikely or impossible to gain custody of their child when they were never married to the child’s mother.  Fathers with this attitude should think again, as the courts and society have realized that fathers can be every bit as responsible as mothers in rearing a child.  The court system may still have a few vestiges of what was known as “The tender years doctrine”.  Such is the idea that a young child should primarily be cared for by their mother.  However, most judges today that I have encountered no longer display any indication that this philosophy still exists.  The reality is that a caring father can be every bit as nurturing and responsible as a caring mother.

In Florida, paternity is established by filing an action in the Circuit Court.  The action is known as a paternity action.  The petition should be titled a Petition for Paternity and Related Relief or a similar name.  There is no legal presumption for or against a father obtaining what used to be called primary custody.  The court’s have changed from using the term custody to using the term timesharing.  It is supposed to promote the idea of the children being shared between parents.  I personally do not believe that much has changed because of the change in terminology.  That said, the law has changed regarding child support in that the non primary residential parent (the parent that has minority timesharing) can now receive a reduction in child support if he or she has the child for at least 20 percent of the overnights.  The prior rule required the non majority parent to exercise at least 40 percent of the overnights to get a reduction in child support.

In a paternity suit, a father attempting to obtain timesharing must request either shared parental responsibility or sole parental responsibility.  Sole parental responsibility is exactly what it sounds like and so is shared parental responsibility.  Even people with serious criminal histories frequently are awarded shared parental responsibility.  Florida has enumerated the factors that it considers important and that a judge must take into account in deciding custody issues between parents.  They can be found in Chapter 61 of the Florida Statutes.  In short, they equate to the best interests of the child.

Adultery can certainly be a factor in a divorce.  However, adultery is only relevant for limited purposes.  Florida is sometimes referred to as a no-fault divorce state.  This only means that proving fault is not required to obtain a divorce.  There are only two reasons that are acceptable in Florida to obtain a divorce.  The most common reason is that the parties have irreconcilable differences.  The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony.  A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid.  F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues.  The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination.  F.S. 61.13(3)(f).  If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children.  In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration.  Packard v. Packard, 697 So.2d 1292 (1st DCA 1997).  The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child.  Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

In Florida, divorces with children involved primarily focus on the parenting plan first.  The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized.  It is important that the plan is tailored to you and your children and accounts for the best interest of the children.  Before filing for divorce, you should consider whether you would like to request one of the following:

  • Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
  • Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.

When parties come to family court in Florida for paternity, dissolution of marriage, or child support proceedings, income of the parties can become very important in calculations and is examined closely. There may be certain situations where one parent is working overtime to make additional money, whether it be to pay support or to supplement income because of a lack of support being received. Can working overtime be a Child supportproblem in your family court case?

Florida Statute § 61.30(2)(a) indicates that gross income shall include, among other things, bonuses, commissions, allowances, overtime, tips, and other similar payments.  Child support will be calculated from net income, so it is important to get all allowable deductions as accurate as possible.  For purposes of child support, the court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the parent’s physical incapacity or other circumstances beyond the parent’s control.  The court has to state the exact amount of gross income it is imputing to a parent. See Shrove v. Shrove, 724 So.2d 679 (Fla. 4thDCA 1999). Regular overtime or second-job income is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future.  See Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994).

Therefore, it can be possible that overtime and second-job income can be used to calculate child support and the court won’t make a finding that the income source will not be available as an income source in the future, making child support higher or lower depending on the circumstances. Contact an experienced Jacksonville Family Law Attorney with the Law Office of David M. Goldman, PLLC for a consultation.

In Simmonds v. Perkins, No. SC17-1963 (Fla. 2018), the Florida Supreme Court decided to take up the question of whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal.  The Court held that the biological father may rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern” for the welfare of the child.  The presumption of legitimacy may be overcome by a “clear and compelling reason based primarily on the child’s best interests.”

fatherThis case involved the child’s mother, Treneka Simmonds, and biological father, Connor Perkins, and their daughter.  When Perkins and Simmonds were together, Perkins was never told Simmonds was married to a man named Shaquan Ferguson.  When Perkins did find out Simmonds was married, she told him she was married for “immigration purposes” and was going to get a divorce.  Perkins was there when the child was born, taken the child to the doctor, enrolled the child in daycare, and even had sole physical custody for awhile.  The child called him “daddy.”  Perkins’ mother is also known as her grandmother.

Perkins decided to file a petition to determine paternity, timesharing, and child support.  Simmonds moved to dismiss the action based on it being barred by the common law presumption of legitimacy because Simmonds was married to Ferguson.  Perkins then added Ferguson as an additional party, amended his petition to seek disestablishment of Ferguson’s paternity, and alleged it would be in the child’s best interests for him to be recognized as her legal father.  Ferguson also moved to dismiss under common law.  The trial court dismissed Perkins’ petition because of previous Fourth District precedent stating that the putative father cannot seek paternity when the child was born in an intact marriage and the married woman and her husband object.

For any father who is involved in a Florida paternity action, it can be overwhelming to learn that you may have to pay not only child support, but retroactive child support and birth expenses for the child.  Is there any way to limit the cost of what has to be paid to the mother for the time period prior to the paternity ordered being entered?  The answer is:  it’s possible.

Baby paternityFlorida Statute 742.031 provides that in a paternity action, the court shall order the father to pay moneys sufficient to pay reasonable attorney’s fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child and to pay all costs of the proceeding, if appropriate.   The statute provides that bills for pregnancy, child birth, and scientific testing are admissible as evidence without requiring third-party foundation testimony and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.

Where it can be tricky is what is “appropriate” as defined in the statute?  In Dustan v. Weatherspoon, 505 So.2d 23 (Fla. 3rdDCA 1987), there was an appeal of a paternity action’s child support order.  The mother alleged that the trial court abused its discretion in failing to require the child’s father to pay any portion of the expenses incidental to the birth of the minor child.  The appellate court agreed with the mother.  The court stated: “These rather minimal child support requirements seem to us the least that a father should be expected to do for his child, providing, of course, the father can afford it.”

movingkidsIn Florida, the biological fathers of children born out of wedlock have few, or no rights, regarding the children until the court establishes paternity.  Florida Statute 744.301 makes a child’s mother the natural guardian when a child is born to unmarried parents.  Mothers are deemed to have automatic custody when the child is born. This means a single mother has the parental responsibility to make important decisions regarding the child’s wellbeing and the child lives with the mother.  Generally, there are two methods for a biological father to gain parental rights. He can formally petition the court for these rights, or he may establish through an informal method with the mother’s consent.

Petitioning the court.

A father may take legal action to establish his parental rights. He can prove that he is the biological father and petition the court for parental rights. In Florida, a father can file a Petition to Establish Paternity to establish parental rights. The court may then issue a parenting plan, which will describe in detail how the mother and father will be responsible for the daily upbringing of the child, the time-sharing schedule, and methods of communication with the child.

After a court has established paternity through this method, the father has the same rights as he would if he were married to the child’s mother. The mother can also ask the court to order the father to pay child support. The amount of child support to be paid usually depends on the father’s income and guidelines established by state law.

What does it mean to be a putative father?

In Florida, the term “putative father” means an individual who is or may be the biological father of a child whose paternity has not been established and whose mother was unmarried when the child was conceived and born. In order to establish rights as a father, the putative father must file a notarized claim of paternity form with Florida’s Department of Health, which maintains the Florida Putative Father Registry. A claim of paternity may be filed at any time prior to the child’s birth, but a claim may not be filed after the date a petition is filed for termination of parental rights. Once a claim is filed with this department, the registrant expressly consents to submit to DNA testing upon the request of any party, the registrant, or the adoption entity with respect to the child referenced in the claim of paternity, according to Florida Statute 63.054.

A claim of paternity form does require the alleged father provide some information such as the name, address, date of birth and a physical description of the mother and the father. It also must provide the date, place, and location of conception of the child if known. Continue reading

At least that is what divorce lawyer Vikki Ziegler thinks he should do. She explains that in order to assure that the baby is legally “his,” he must take into account the fact that his girlfriend, Kim Kardashian, is still married to husband Kris Humphries.

Kanye must take Kim’s marriage to Kris into account because Kim’s Baby is legally presumed to be the offspring of her husband.

She advised Kim to end her marriage to Kris right away. This way she will be unmarried or married potentially to Kanye when her baby is born.

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