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Orlando Custody & Visitation Law Blog

Challenging paternity

Parents in Florida may benefit from learning more about father's rights and the issues involved with challenging paternity. If the mother is married at the time of childbirth, her husband is presumed to be the father unless his paternity is challenged. However, people who are interested in challenging paternity may be required to take similar action as those attempting to establish paternity.

After a complaint is filed with the court, a DNA test may be ordered to determine who the actual father is. When the court names the father, the parents may be required to meet and discuss the terms of the parenting plan, which might include custody rights and child support. Several grounds may be cited when challenging a previous paternity test, however.

What rights does an unmarried father have?

Florida custody issues may seem more complicated for an unmarried father, but biological parents have rights even if a child is born out of wedlock. As courts consider issues such as custody and visitation, the best interest of the child is the priority. Additionally, courts consider the involvement of both parents in a child's life to be important as long as there are no issues indicating otherwise.

Prior to a father being able to exercise paternal rights, paternity must be legally established. In some cases, this may be as simple as both parents completing paperwork related to an acknowledgment of paternity. This may occur at the time a child is born or at some point afterward. Genetic testing may also be used to establish paternity in cases where it is disputed.

How paternity testing works

Individuals in Florida who are involved in disputes over paternity may be interested in learning how paternity tests work and how accurate they are. Scientific paternity testing has come a long way since the days of blood type testing that did more to eliminate the possibility that an individual might be the father than to positively confirm an individual as father.

More useful for narrowing the field of potential fathers was Human Leukocyte Antigen testing. HLA testing examined proteins in white blood cells and was more accurate than blood type testing, but it also required a blood sample. In addition, like blood type testing, it only eliminated but did not confirm anyone as a father.

Can child custody issues be decided outside of court?

Florida parents who want to limit the stress of child custody proceedings during their divorce might want to work more informally to develop a plan for custody and parenting time. In fact, such action can be taken with the cooperation of parents and their respective legal counsel as they use alternative dispute resolution options to work out a voluntary arrangement. Reaching an agreement outside of court allows parents the ability to limit the intervention of a judge in their family's approach to the issue.

Alternative dispute resolution may not necessarily work in all cases. However, parents with a willingness to work together may reach an agreement without a judge intervening. Attorneys may handle the negotiations in some child custody cases. In other cases, the parties themselves might conduct the negotiations, providing details to their attorneys for finalization. A written agreement must be completed after settlement talks have been successfully completed.

How can an unmarried father establish paternity?

In Florida, there are several situations in which an unmarried father may find himself needing to establish paternity of a child. By establishing paternity, a father can gain the opportunity to obtain custody as well as visitation rights.

In order to establish his rights as a parent, an unmarried father must first file a notarized claim of paternity with the Putative Father Division of the Department of Vital Statistics. This can be filed prior to the child's birth, but it may not be filed after a petition to terminate the father's rights has already been filed.

How is paternity established?

Florida residents who want to exercise their parental rights may first need to legally establish the fact that they are actually eligible to do so. In the case of children who were born out of wedlock, the process of establishing paternity is explicitly codified, but variances in specific family situations may have an impact on the way the matter is ultimately handled. In most situations, men who acknowledge paternity still have 60 days to rescind such acknowledgement, meaning that it's necessary to pay attention to the timing of events when trying to get documentation in order or resolve disputes.

According to Florida law, court officials can accept multiple forms of verification acknowledging paternity. For instance, affidavits and stipulations of paternity acknowledgement can be executed by couples who want to establish the identity of their child's father and submitted to court officials as long as an adjudicatory hearing was conducted. When such hearings haven't occurred, notarized voluntary acknowledgements may be accepted.

What happens if a spouse refuses to pay child support?

When a Florida court issues a child support order, it serves as a legally binding and enforceable order in the event that the parent who has been ordered to pay fails to make their payments. The Florida Department of Revenue has several methods through which these orders can be enforced in the event of a default.

After a child support payment becomes delinquent, the DOR will first mail a late payment notice to the parent. If the parent still does not submit payment and have regular employment, a garnishment order can be issued to his or her employer ordering it to withhold the support amount and submit it directly to the state for the benefit of the custodial parent. Additionally, Florida may suspend driver's licenses and professional licenses for nonpayment of child support. In order to get these licenses back, the delinquent parent will have to arrange to pay the back-owed child support amount.

Can a violent or abusive parent receive visitation rights?

Many Florida parents file for a divorce because of an abusive spouse. They may be concerned about how the court will handle questions of child custody and whether the abusive parent will receive custody or visitation rights.

In cases where parents cannot agree on child custody arrangements, family court judges often develop parenting plans after hearing testimony and examining evidence presented by each parent. Parents who have been convicted of first-degree misdemeanor or felony domestic abuse or who are in prison are often not granted these rights because judges may believe that the children's welfare would be compromised if that parent received custodial or visitation rights.

How can a parent get sole custody of a child?

The public policy of the state of Florida is that children should have continuing, frequent contact with both of their parents following a separation or divorce. Parents are encouraged to share in the joys and responsibilities of raising their children. A family court will order shared custody unless it makes a determination that shared custody would have a detrimental effect on the child.

There is a rebuttable presumption that shared custody would be detrimental if a parent has been convicted of a first degree misdemeanor or more serious crime involving domestic violence. Even if there has been no conviction, a court will consider evidence of a parent's domestic violence in making its custody determination.

Florida visitation rights for grandparents

When a couple divorces or annuls their marriage and one of the parents receives physical custody of any minor children, the parents or grandparents of the other parent may be able to obtain visitation rights from the state. Similarly, grandparents may be able to obtain these rights after a paternity hearing establishes that they are the child's grandparents.

If grandparents desire visitation rights with a child, they must first file a petition for these rights with the court. The court will examine the situation to determine if visitation is in the best interests of the child. This includes the grandparents' willingness to foster positive relationships between the child and parents. The court will also examine the mental and physical health of the child and grandparents as well as any previous relationship the child had with the grandparents.

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