Articles Posted in Paternity

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 know 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.

Most Jacksonville, Florida residents thinking of filing their own divorce haven’t heard the phrase, “He who represents himself has a fool for a client.” Unfortunately the court system is complicated, but it’s complicated because our lives are complicated. Some people say that their divorce is a “simple” one, some attorney’s say that there’s no such thing as a “simple divorce”. Just as I don’t dare to do simple mechanic work such as an oil change because I’m not a mechanic, a non-lawyer has to remember that a case that might be considered simple by an attorney isn’t necessarily simple for them.

There are complex pleadings that are required to make a divorce judgment final. Just because it says “Final” in the title doesn’t make it so. You can’t depend on a judge to tell you if you’ve made a mistake either, they’re not allowed to give you legal advice and are often so busy with their heavy case loads that they’ll sign almost anything you agree to.

A recent case I saw was that of a woman who had become pregnant from an adulterous affair while living with her husband. Under Florida law, the only people who have the right to contest the parentage of a baby born during a marriage while the couple is cohabitation is the wife and husband. This is because Florida values the interest of preserving the marriage above the rights of unmarried fornicators to raise their own children.

paternity.jpgAs a Jacksonville Family Law Lawyer, I often have cases where a mother and father are not married to one another but they have a child in common. In my experience many men falsely believe simply because their name is on the birth certificate that they are legally the fathers. In Florida this is simply not the case! There is more that is required for unwed fathers in Florida to gain legal rights over their children.

Under Florida law, until a Judge signs an Order which determines that an unwed man is the father of a child, then the child is NOT legally his. As such, the man has no legal rights to the child. That includes no rights for timesharing and no rights over major decisions in the child’s life. This means that if the child’s mother does not want to allow the alleged father to see the child, she is under no legal obligation to do so.

In order to be recognized as the legal father in Florida it is necessary to file what is called a Petition for Determination of Paternity. Paternity actions are brought before a court in order to assist a parent in acknowledging and protecting important time-sharing and child support rights and/or obligations.

baby dad.jpgAs a Jacksonville Family Law Lawyer, I often have cases where the parties are not married but they have a child in common. In my experience many men falsely believe simply because their name is on the birth certificate that they are legally the fathers. In Florida this is simply not the case!

Under Florida law, until a Judge signs an Order which determines you are the father, then the child is NOT legally yours. As such, you have no legal rights to the child for timesharing or parental rights of any kind.

In order to be recognized as the legal father in Florida it is necessary to file what is called a Petition for Determination of Paternity. Paternity actions are brought before the court in order to assist a parent in acknowledging and protecting important time-sharing and child support rights and/or obligations.

The State of Florida has child support guidelines that must be followed when calculating child support in a divorce or paternity case. Generally speaking, the parties’ combined net income, the percentage of time each party spends with the children, and the number of children involved are used in determining the amount of child support. Child care costs and health insurance costs are also added into the equation when determining child support.

It is important to note that child support cannot be waived by the parents. Child support is considered a right of the child not of the parent. Therefore, parents cannot bargain away their duty to support their child(ren).

Contact a Jacksonville Child Support Lawyer for further information of Florida’s Child Support laws.

usher.jpgDrug testing is a common issue in divorce and other legal proceedings involving children. Family Law Judges in Jacksonville have the authority to order a parent who is alleged to be using and or abusing illegal substances to submit to a drug test. This usually occurs upon motion of the other party or parent.

Reportedly, R&B star, Usher, is finding himself in this exact situation. Neontommy.com posted an article, which opens with, “In the heat of a custody battle, Usher’s ex-wife, Tameka Raymond, is practically begging for the judge to have him drug tested. She claims that the R&B superstar “pops pills” and “who knows what else” in front of their two boys.”

If you live in the Jacksonville area and are concerned that your ex-spouse or soon-to-be-ex-spouse is abusing drugs around your children contact a Jacksonville Family Law Lawyer today to schedule a free consultation.

retroactive cs.jpgIt’s not uncommon for parents to decide to part ways and raise their children separately. Some parents are able to work things out without going to court, but oftentimes the court needs to step in and help determine each parent’s rights.

Child support payments are often contested in these situations. Your former spouse may think you owe more than you think you do. If you go to court, you may find the court is on your side. If the court orders child support payments, however, you may find yourself owing more than you originally thought.

In fact, in paternity actions, dissolution of marriages, or petitions for support during marriage, the court has the discretion to award child support retroactive to the date when the parents did not reside together. The court can order payments from up to 24 months in the past.

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