As more and more couples are forgoing marriage and deciding instead to live together, one of the things I am constantly ask is, what are the biological father’s rights with regard to a child born outside of a marriage? Now granted the question is usually not framed as just written, usually it is much more traumatic such as “My girlfriend and I have lived together for 10 years and she recently left with our 6 year old and won’t let me see the child, can she do that?”
The answer, unfortunately, is a resounding YES. Which is usually followed by a jaw dropping look from the gentleman asking the question and the exasperated response of “how is that possible”? It is possible because it’s the law in Florida. Florida Statute 744.301 provides as follows:
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
After this revelation sets in I will sometimes hear “but I’m listed as the father on the child’s birth certificate.” While it is nice to be officially recognized as the father on a document recorded with the state and doing so creates the establishment of paternity, actually just a presumption within the first 60 days after the document is signed by both parents, it does not provide the unwed father with any parental rights. It does however, allow the mother or the child’s legal representative, the Florida Department of Revenue, the right to seek child support from the father without having to first establish the father’s paternity of the child in question.
So after all this, what is it that a biological father must do to see or share time with his child when the mother will not voluntarily allow the same? The answer is to file a Petition to Establish Paternity and Related Rights. Through that action the biological father can obtain parental rights equal to and shared by the mother and if circumstances dictate he may even obtain parental rights exceeding that of the mother. However, unless and until such a Petition is filed the biological father sees and shares time with his child/ren at the whim of the mother.