Fatherhood in Florida.

• Author: Robbins, Judge Sue

Florida courts have been firm in asserting that a child has only one father, and that paternal rights and responsibilities cannot be spread or shared between two or more individuals. (1) However, the reality of the law is somewhat more complex. A man may be a presumptive father, a putative father, a prospective father, or an unmarried biological father, and yet have no rights other than notice of proceedings with respect to the child. If the child is born to a woman who is married to someone other than the man in question, he may be entitled to even less. (2) Paternity has been distinguished from legitimacy so that the rights and duties of fatherhood can sometimes be shared, or transferred from one man to another, without disturbing the child's legitimate status. (3) A man may be proven to be the biological father of the child, but not be recognized to have any parental rights. (4) Parents may stipulate in a dissolution of marriage case that the husband is not the father of the wife's then unborn child. Thereafter, the father may be required to be joined as a party in a termination of parental rights case because his rights continue. (5)

This article will provide a broad overview of what it means to be a father under different statutes, and will summarize, compare, and analyze the current law of fatherhood in Florida, not only under the paternity statute itself, but also under the statutes concerning dependency, dissolution of marriage, adoption, and other statutes. (6)

Fatherhood under Ch. 39

Section 39.01(49) defines what it means to be a "parent":

"Parent" means a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under Sec. 63.062(1). If a child has been legally adopted, the term "parent" means the adoptive mother or father of the child. The term does not include an individual whose parental relationship to the child has been legally terminated, or an alleged or prospective parent, unless the parental status falls within the terms of Sec. 39.503(1) or s. 63.062(1) (emphasis added).

Section 63.062(1) enumerates those persons whose consent to the adoption of the child is required as follows: (7)

[A] petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in Sec. 63.082 after the birth of the minor or notice has been served under Sec. 63.088 to...

(b) The father of the minor, if:

1. The minor was conceived or born while the father was married to the mother;

2. The minor is his child by adoption;

3. The minor has been adjudicated by the court to be his child by the date a petition is filed for termination of parental rights;

4. He has filed an affidavit of paternity pursuant to Sec. 382.013(2)(c) by the date a petition is filed for termination of parental rights; or

5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required time frames, and has complied with the requirements of subsection (2).

Ch. 39, unlike Ch. 63, uses gender-neutral language, and does not use the terms "putative father" or "unmarried biological father." Instead, Ch. 39 uses the term "prospective parent," which it defines as a "person who claims to be, or has been identified as, a person who may be a mother or a father of a child." (8) A prospective parent is not a parent under Ch. 39 unless "the parental status falls within the terms of Sec. 39.503(1)." Therefore, a prospective father may be regarded as a parent if he was married to the mother at the probable time of conception of the child or at the time of birth of the child; if he was cohabiting with the mother at the probable time of conception; if the mother has received payments or promises of support with respect to the child or because of her pregnancy from him and if he claims to be the father; if the mother has named him as the father on the birth certificate or in connection with applying for or receiving public assistance; or if he has acknowledged or claimed paternity of the child. (9) The statute does not specify the manner in which one must acknowledge or claim paternity.

Likewise, according to Ch. 39, a person identified as a prospective father may be regarded as a parent if he fits under the provisions of [section] 63.062(1) as a person whose consent is necessary for adoption. This identical language is included in the definition of "parent" under Ch. 39 and adds further to the confusion in meaning.

Section 39.503(8) provides a mechanism for a prospective father to become a "party to the proceedings" and to be treated as a "parent":

[T]hat person must be given the opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department. A prospective parent who files a sworn affidavit of parenthood while the child is a dependent child but no later than at the time of or prior to the adjudicatory hearing in any termination of parental rights proceeding for the child shall be considered a parent for all purposes under this section unless the other parent contests the determination of parenthood. If the known parent contests the recognition of the prospective parent as a parent, the prospective parent shall not be recognized as a parent until proceedings under chapter 742 have been concluded. However, the prospective parent shall continue to receive notice of hearings as a participant pending results of the chapter 742 proceedings.

When a termination of parental rights petition has been filed, an abbreviated version of that procedure applies. (10)

The time period in which a prospective father may establish paternity under Ch. 39 is different and longer than under Ch. 63. Under Ch. 39, the sworn affidavit of parenthood must be filed "no later than at the time of or prior to the adjudicatory hearing in the termination of parental rights proceeding for the child." (11) Under Ch. 63, the affidavit of paternity must be filed by the time of the filing of the petition for termination of parental rights, although this time period will be extended in some situations to a date 30 days after the service of the notice of intended adoption plan. (12)

Chapter 39 does not address biological paternity or DNA testing, and raises no presumptions concerning paternity from test results. Although [section] 39.503(1) requires the court to conduct a specific inquiry (13) as to paternity, it does not include the provision contained in Ch. 63 that if the inquiry identifies the father as a "man to whom the mother of the minor was married," a "man who has filed an affidavit of paternity ... before the date that the petition for termination of parental rights is filed with the court," or a "man who has adopted the child," "the inquiry may not continue any further." (14) It is, therefore, not uncommon under Ch. 39 for more than one man to be identified as the prospective father with the "opportunity" set forth in [section] 39.503(8). It is also not uncommon under Ch. 39 to have a prospective father identified through inquiry even though the mother is married to a different man.

The court has no authority to determine a disputed issue of paternity in a Ch. 39 proceeding. (15) Furthermore, even though personal jurisdiction over the parents is irrelevant to the exercise of the court's jurisdiction in adjudicating a child to be dependent under Ch. 39, absent personal jurisdiction over the parent in question, the court has no authority under Ch. 39 to order DNA testing. (16) When paternity is contested, the parent, the Department of Children and Families, or another party or agency must initiate an appropriate proceeding in the family division of the circuit court. (17) If the...