Determination of parentage - unmarried parents

AuthorAnnette J. Szorosy/Stephanie Matalon
ProfessionGeneral Magistrate/General Magistrate
Determination of Parentage
— Unmarried Parents
The “family” in a determination of parentage under Chapter 742, Florida Statutes, is signif‌icantly different
from the “family” in marriage, and dissolution of the marriage under Chapter 61. The parents in a dissolution
of marriage begin the legal process similarly situated under the law. The parents in a paternity action do not
begin the legal process similarly situated under the law. With an average of 47% of children in the state of
Florida in 2016 born out of wedlock, higher than the national average of 40%, issues of paternity are becom-
ing more prevalent in a family law practice. A family lawyer who has handled issues of parenting and child
support in a dissolution of marriage action is not thereby competent to handle those same issues in an action
under Chapter 742.
Family law practice in dissolution of marriage is not the same as family law practice in paternity or parenting
between unmarried partners, regardless of whether they are of different or the same sex. Paternity, when
referred to in this chapter, refers to the legal status that exists prior to the entry of a court ordered parenting
plan and time-sharing schedule, as well as the legal determination of the unmarried father, which are two
entirely different concepts under Florida law.
The law of dissolution of marriage has evolved as a codif‌ication of case law and is primarily statutory, and
primarily in one chapter of the Florida Statutes, Chapter 61. Paternity law has evolved from one principle,
knowing who the mother of the child is and assuring that the child is supported by a father, not the state.
Paternity law involves numerous statutes. The law is primarily public policy driven and may seem inconsistent
to a family law practitioner experienced in the practice of dissolution of marriage. Parenting law between
same sex unmarried partners, based on a Florida Supreme Court case, seems to be following the path of
paternity actions.
This chapter is intended to provide the family law practitioner with the similarities and differences not only in
substantive law, but also in practice and procedure. The chapter assists the family lawyer to identify actions
and grounds that may be applicable in the Florida paternity case, and the differences between representa-
tion of the unmarried mother and the unmarried father. Standing, jurisdiction, service and service of process,
emergencies, domestic violence, temporary relief, parental responsibility, discovery, trial and evidence are
different in a paternity case and this chapter is intended to help the family lawyer navigate the complex area
of the law that encompasses paternity issues.
Florida Family Law and Practice 22-2
§22:01 Introduction
A. The Changing American Family
§22:10 Explosion of Children Born Out of Wedlock
§22:11 Unmarried Mothers Are Changing
§22:12 Economic and Educational Disparity Between Married and Unmarried Couples
§22:13 Most Unmarried Mothers Are Not With a Partner
§22:14 Unmarried Partners Live Together an Average of 22 Months
§22:15 Mother as Breadwinner
§22:16 Boom in Number of Gay Parents
§22:17 Stability in Relationships Depends on Education and Class
§22:18 Increase in Low-Income Fathers Seeking Involvement With Children
B. Differences in Paternity and Dissolution of Marriage Law Mirror Societal Differences
§22:30 Chapter 61’s Application to Paternity Is Limited
§22:31 Unmarried Father’s Rights Are Inchoate
§22:32 Signing of Birth Certif‌icate Grants Responsibilities, but Not Rights
§22:33 When Paternity Judgment Contains No Parenting Plan or Time-Sharing Schedule
§22:34 Father Must Bring Chapter 742 Paternity Action to Seek Parenting Rights
§22:35 Putative Father Registry
C. Purposes of Chapter 61 (Dissolution of Marriage) and Chapter 742 (Paternity) Are Different
1. Purposes and Policy
§22:40 Purposes of the Chapters
§22:41 Public Policy of Chapter 61 Parenting Provisions
2. Establishing Paternity under Chapter 742
§22:50 How Paternity Is Established
§22:51 Jury Trials in Paternity Cases
§22:52 Ef fect of Paternity Acknowledgment
§22:53 Petition Seeking Parental Responsibility Is Paternity Action
3. Ex Parte Relief and Domestic Violence Proceedings
§22:60 When Unmarried Mother Is Sole Custodian, Father Lacks Standing to Seek Ex Parte Relief
§22:61 Domestic Violence Proceedings
§22:62 Unmarried Mother ’s Right to Relocate
4. Mother Married to Someone Other Than Biological Father
§22:70 Husband Presumed to Be Father
§22:71 Overcoming the Presumption
§22:72 Legal Father Indispensable Party
§22:73 Simmonds v. Perkins—Overcoming the Presumption of Legitimacy and Standing
§22:74 Legitimacy and Paternity Are Not the Same
5. Attorney ’s Fee Provisions Are Different in Chapter 61 and Chapter 742
§22:80 At torney’s Fees in Chapter 61
§22:81 Attorney’s Fees in Title IV-D Cases
§22:82 At torney’s Fees in Paternity Actions
§22:83 Appellate Fees
6. Child Support
§22:90 Final Paternity Judgment Required to Address Child Support
§22:91 Support under Chapter 742 Includes Birth Expenses
7. Property Division
§22:100 Property Issues Are Not Addressed in Paternity Actions
8. Jurisdiction Over Paternity Actions
§22:110 Long Arm Jurisdiction Over Paternity Actions
§22:111 Jurisdictional Allegations in Petition
§22:112 Child Born and Residing Outside Florida
22-3 Determination of Parentage — Unmarried Parents
§22:113 Constructive Service Not Permitted
§22:114 Relocation Statute Inapplicable if Child Moved Before Action Filed
D. Paternity Law and Dissolution of Marriage Law Evolved Differently
§22:120 Introduction
1. Evolution of Custody in Chapter 61, Dissolution of Marriage.
§22:130 Shared Parental Responsibility
§22:131 “Care, Custody, and Control”
§22:132 Best Interests of the Child
§22:133 Father Equal Standing with Mother in Regard to Custody
§22:134 Factors to Determine Custody
§22:135 Change in Terminology in Chapter 61
§22:136 Substantial Time-Sharing in Child Support Award
2. Evolution of Custody, Parental Responsibility and Time-sharing in Paternity Law
§22:150 Introduction
§22:151 Florida Supreme Court 2013: Inchoate Interest and Demonstration of Commitment
§22:152 Unmarried Mother Must Have Been Proven Unf‌it Until Mid to Late 1980’s
§22:153 Unf‌itness No Longer Required: Application of Fla Stat §61.13
to Child Custody in Paternity Actions in Late 1980’s
§22:154 Support under Chapter 742 Includes Birth Costs
§22:155 Determination of Parenting Plan in Accordance With Chapter 61
§22:156 Title IV-D Standard Parenting Time Plan in DOR actions
§22:157 Evolution of Law Regarding Unmarried Same Sex Parents
§22:170 Paternity Law Involves Many Florida Statutes
A. Chapter 742: Paternity
§22:180 Purpose and Public Policy
§22:181 Scientif‌ic Testing to Determine Paternity
§22:182 Assisted Reproductive Technology
§22:183 Disestablishment of Paternity or Termination of Child Support Obligation
B. Chapter 744: Guardianship
§22:190 Introduction
§22:191 Purpose and Public Policy
§22:192 Minor Def‌ined
§22:193 Distinction Between Minors Born of a Marriage and Those Not Born of a Marriage
C. Chapter 39: Abuse, Neglect, and Abandonment
§22:200 Introduction
§22:201 Purpose and Public Policy
§22:202 Parent
§22:203 Prospective Parent
§22:204 Family
§22:205 Legal Custody
§22:206 Impending Danger
§22:207 Present Danger
§22:208 Neglect
§22:209 Abuse
§22:210 Abandoned or Abandonment
D. Chapter 63: Adoption
§22:220 Introduction
§22:221 Public Policy
§22:222 Abandoned
§22:223 Parent
§22:224 Unmarried Biological Father

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