Imagine a story like this…  we met two years ago.  We were both married to other people, but we fell madly in love with each other.  We left our spouses and moved in together.  During that time the woman became pregnant and had a child.  The woman was not divorced from her legal husband at the time the baby was conceived and born.  Now both parties are divorced and have married each other.  Though the actual father was at the delivery of the baby, the hospital refused to put his name on the birth certificate because the woman was married to someone else.

The issue at this point, is how to legally establish the correct biological father.

Presumed Father

Florida Statute §382.013(2)(a) provides that “if the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” It is important to note that legitimacy and paternity is not the same thing.  Legitimacy of a child exists when a child is born during the mother’s marriage, regardless of whether the father is her husband or someone else.

In the State of Florida, when a child is born while the mother was married, the husband (at the time of birth) is the presumed legal father. This presumption of legitimacy is based on the policy of protecting the welfare of the child. Nevertheless, this presumption that the mother’s husband is the child’s legal father is rebuttable. An action seeking declaratory relief is a proper method to resolve the issue of paternity of children who were born during the mother’s marriage to another man.

Correcting the Legal Presumption of The Father

Assuming the husband at the time of the birth agrees to release his rights, the next step is to review the mother’s Final Judgment for Dissolution of Marriage from her former husband to verify that the father was not already determined during the divorce process.  If the Final Judgment includes a provision providing that there was a minor child born during the marriage, or if the mother’s former husband is claiming to be the minor child’s father, this process becomes more complicated, as paternity of the minor child would have to be legally disestablished for the former husband before it could be established for the mother’s new husband (the child’s biological father).

In many cases such as this, the husband at the time of birth is often willing to sign a legal document declaring he is not the biological father of the child and releasing any and all rights (time-sharing with the child) and responsibilities (payment of child support) he may have to that child.  If the legally presumed father at the time of the birth is unwilling to release his rights, the parties will likely have to proceed to ask a court to decide.

Another consideration is whether or not the mother’s current husband at the time of the child’s birth is listed on the minor child’s birth certificate. Often, hospitals will not allow the mother to list any man other than her husband as the father of her newborn child.  In the scenario I describe at the beginning of this article, I do not usually see the mother’s current husband on the child’s birth certificate (usually because the mother did not disclose it at birth). The more common occurrence is that no father is listed at all on the minor child’s birth certificate.

In the majority of the cases we’ve had with this unique fact pattern, the biological parents are now married and in full agreement that her current husband is the father of the minor child.  This can mean that we can ask the two parties to enter into a Joint Stipulation Establishing Paternity. The joint stipulation is signed and notarized by both parents and acknowledge that the new husband is the father of the minor child and that they now all live together as an intact family unit. Furthermore, it can include a request to add the husband’s name to the child’s birth certificate and even change the child’s last name.

If the mother is not objecting to paternity being established, and has signed the Joint Stipulation to Establish Paternity, a DNA test is not usually required. However, if a DNA test has already been completed, or if the parties voluntarily want to have one conducted, we will usually include the results with the Joint Stipulation Establishing Paternity as further support for the parties’ request.

Pursuant to Florida Statute § 742.12(4), a statistical probability of paternity of 95 percent of more creates a rebuttable presumption that the alleged father is the biological father of the child.

Parenting Plan and Parenting Course

If the parents of the minor child are currently married and/or living together as an intact family unit, a parenting plan is not necessary. However, if the parents of the minor child are not married or living together as an intact family unit, a parenting plan will be required to be filed with the Court. In addition, a parenting course may be required for both the mother and father.

Final Step

Once the Joint Stipulation to Establish Paternity has been filed with the Court (along with several other required standard court forms), the final step in the process is to request that the Court enter a Final Judgment of Paternity, which would ratify and approve the parties’ Joint Stipulation. This is usually a very simple and easy final step if the process was followed properly.  Typically the parents are very excited and thrilled to look forward to their new life as a family!

A Final Note

It is important to keep in mind that although this unique set of circumstances presents itself when the minor child’s parents are now currently married to one another, our firm can only represent one of the parties, and, usually, we are retained by and represent the biological father.

Sources: § 382.013, Florida Statues (2002); Dep’t of H.R.S. v. Privette, 617 So.2d 305 (Fla. 1993); Eldrige v. Eldrige, 16 So.2d 163 (Fla. 1944); Fernandez v. McKinney, 776 So.2d 1118 (Fla. 5^th DCA 2001); § 742.10, Florida Statutes (2012) and § 742.12, Florida Statutes (2012).