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  • Writer's pictureBrannon Gary

Custody and Visitation Rights for Florida's Fathers

Question: How does a Father go about establishing custody and visitation with his children in the State of Florida?

It is all too common for parents who were not married to one another at the conception or birth of their children to endure years of conflict while trying to hash out visitation, custody, and parental decision making. Fathers who were not married to the mother at the time of conception or birth of their children often come to the shocking realization that while their biological paternity provides the right to sign a birth certificate and pay a hefty child support obligation, legally speaking it does nothing to establish custody or visitation rights, the right to receive and inspect their children’s education and healthcare information, or the right to participate in parental decision making. Unmarried fathers also face the harsh reality that they have absolutely no say in where their children live, and that an unwed mother has the legal authority to relocate the minor children wherever she sees fit.

The root of this problematic family dynamic can be found within §744.301(1), Florida Statutes, which establishes that “[t]he 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 and order stating otherwise”. Essentially, this law establishes that without a court order to the contrary, the mother of a child born out of wedlock is the one and only legal guardian with custody rights to that child. There is no law that gives an unwed father custody rights to his children without a court order. When two individuals take part in creating a life, but only one individual has any legal say as to the care, custody, and control of that life, an unhealthy power dynamic can easily arise which most likely results in a father not having regular access or visitation with his children. The person who suffers most when both parents do not play an active and consistent role in their children’s lives is not the mother who takes on more than her fair share of childrearing responsibilities or the father who misses invaluable time with his children, rather it is the children who suffer the most by being deprived of their right to enjoy regular and continuing contact with both parents.

While Florida law may provide unwed mothers a legal advantage with regard to custody rights, it does not leave unwed fathers without a solution. Far too many fathers spend far too much time at the mercy of a mother’s sole legal guardianship and ignore the most crucial part of the law: that the mother is only the sole guardian until the entry of court order stating otherwise. So what does a dad have to do to get a court order stating that he too is the legal guardian of his minor children? Simple; file a paternity action and obtain a Final Judgment of Paternity.

Many are confused at the mention of filing a Petition to Establish Paternity in family law court when there is no dispute as to biological paternity. However, a family law paternity action is not necessarily about scientific paternity, it is about establishing one’s legal paternity. Along with establishing a father’s legal paternity and custody rights, a Final Judgment of Paternity also establishes how parents go about sharing in parental decision-making (referred to as “parental responsibility”) and provides a detailed Parenting Plan that includes a court-ordered visitation schedule (referred to as “time-sharing”), school designation, communication and any other related co-parenting issues. Once a Final Judgment of Paternity is entered, the father is afforded all legal rights to his children as if he and the mother were married at the time of conception or birth of the children. So Florida law does not leave unwed fathers with no legal rights to their children, it simply places the onus on unwed fathers to take the necessary steps to assert those rights!

So why should a parent file a family law paternity action? The benefits of seeing a paternity action through to completion are plentiful. First and foremost, children are provided a stable and consistent schedule that allows them to enjoy regular time with both parents. Furthermore, much of the drama associated with time-sharing and custody naturally dissipates as the great debate is resolved once a court-ordered visitation schedule is entered. Finally, the family as a whole, although separated, is charted on a more cohesive path going forward. Family law paternity actions are also beneficial from a child support standpoint, as child support obligations are calculated, in part, based on the amount of overnights per year that each parent has with the children. The more overnights a parent has with his or her children, the less the out-of-pocket child support costs will be as that parent will need more money to support the children while in his or her home. A father who has been previously ordered to pay child support can expect a significant decrease in his child support obligation once he secures substantial time-sharing with his children.

A family law paternity action is the difference between an unwed father having no legal custody rights and enjoying the same legal custody rights afforded to the mother. A family law paternity action elevates the father from the status of legal stranger to his offspring to being their legal guardian with custody rights.

If you or someone you know is in need of establishing legal paternity, feel free to give our office a call to schedule a free initial consultation, where we can discuss the facts of your case and the legal options at your disposal.

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