Tag Archives: birth certificate

How-To Book on Adoption and Surrogacy

Adoption_and_Surrogacy_in_Florida_RGB.website

Considering handling your own Florida adoption without an agency or attorney? Thinking about a Florida gestational surrogacy, either as an intended parent or surrogate? The how-to book, Adoption and Surrogacy in Florida: The Legal and Practical Sourcebook for Laypersons and Lawyers, will guide you through the laws and procedures and potentially save you thousands of dollars. Comes with an invaluable CD-ROM containing all the forms in the book.

*Edit (04/16/2015) There have been significant changes in adoption and surrogacy law in Florida since the publication of this book, and the book is no longer available.

Legal Father Trumps Biological Father, Sometimes.

It’s not uncommon to hear stories of married women who give birth and it turns out the husband is not the baby’s father. Naturally, a question arises of whether the unmarried biological father (“UBF”) has any right to the child. In Florida, a child born during the marriage is presumed to be the husband’s child because the law favors legitimacy.

If the mother is married at the time of the birth, and a court has not already declared another man to be the father, the husband’s name must be entered on the birth certificate. See F.S. 382.013(2)(a). Only one father’s name goes on the birth certificate.

What if the mother lies and says she’s not married? What if she and the UBF execute an affidavit of paternity swearing the UBF is the child’s father? While an affidavit of paternity creates a rebuttable presumption of paternity (see F.S. 742.10(1)) that presumption can be overcome by proof or by a preemptive law. Since a married mother and a UBF are precluded from filing an affidavit of paternity with the Office of Vital Statistics, the fraudulent affidavit of paternity amounts to a nullity.

In terms of adoption, if the mother is married at the time of the child’s conception or birth, the court (or the adoption entity) cannot make any further inquiry of the father’s identity. In other words, the UBF cannot even be identified, is not given any consideration and is not entitled to notice of the adoption. He cannot force the issue by filing a petition to determine paternity: his petition will be dismissed. The husband’s consent to adoption will be required, but not the UBF’s, in order for the adoption to be granted.

If, on the other hand, the husband permits the UBF’s petition to determine paternity to go forward, the husband’s consent will still be required, but so will the UBF’s, assuming the UBF is determined by a court to be the father before a petition to terminate parental rights is filed, and assuming he has complied with the requirements of F.S. 63.054 and 63.062. If the UBF’s consent is required, the UBF has the power to stop the adoption. (Technically, after determination of paternity, the UBF is no longer a UBF, or unmarried biological father.)

The next logical question is: Between the legal father and the UBF who’s established paternity, whose rights trump? As far as I know, the law does not contemplate two fathers with equal rights to a child. That being the case, I would venture to say the UBF wins because the legal father has allowed the UBF to be declared the father.

In Florida, an unmarried biological father is not a “parent.”

In Florida, a father is an unmarried biological father if he is not married to the mother at the time of the conception or birth of the child; and (a) he has not been adjudicated by a court to be the child’s father before a petition is filed to terminate his parental rights; and (b) he has not signed an affidavit of paternity before a petition is filed to terminate his parental rights. Why is this important? Because in Florida, an unmarried biological father is not considered a “parent,” under Chapter 63 of the Florida Statutes.

Example 1: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes, and a court adjudicates him as the child’s father. A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 2: Father is not married to mother at time of conception or birth of child, but his name is on the child’s birth certificate (which means he signed an affidavit of paternity). A month later, a petition is filed to terminate his parental rights. This man fits within the definition of “parent.”

Example 3: Father is not married to mother at time of conception or birth of child, but he files a petition to determine his paternity under Chapter 742, Florida Statutes. Before the court enters an order adjudicating him as the father, the adoption entity files a petition to terminate his parental rights. This man does not fit within the definition of “parent.”

A unmarried biological father’s lack of parental status carries several legal ramifications relating to his child. They are as follows:

(a) Adoption. If the birth mother places the child for adoption, his consent to the adoption is not required, unless he jumps through several hoops prior to the time a petition is filed to terminate his parental rights.

If the child is less than 6 months of age when placed for adoption, the unmarried biological father must do the following things before the mother executes a consent for adoption:

i) file a Claim of Paternity with the Florida Office of Vital Statistics (Click here to file a Claim of Paternity);

ii) contribute to the birth mother’s and child’s medical expenses related to pregnancy and birth, if he had knowledge of the pregnancy and if he was not prevented from doing so by the mother of legal custodian of the child; and

iii) if served with a notice of intended adoption plan, executed and filed an affidavit with the court that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay. (Click here for Florida law pertaining to unmarried biological fathers’ responsibilities.)

If the child is 6 months of age or older, the unmarried biological father must: i) have maintained a relationship with the child by visiting with the child at least monthly if not prevented from doing so by the birth mother or the child’s legal custodian; ii) have maintained regular communication with the child, when physically and financially able, and not prevented from doing so by the birth mother or the child’s legal custodian.

If the unmarried biological father fails to do the things shown above, according to the child’s age, his consent will not be required for purposes of adoption.

(b) Temporary Custody. Under Chapter 751 of Florida Statutes, an extended family member (such as an aunt, uncle, grandparent, sibling, even stepparent) can petition for temporary custody of a child under certain circumstances. Because an unmarried biological father is not considered a parent, his relatives are not considered extended family members and cannot petition for temporary custody of his child. In fact, the unmarried biological father himself does not have standing to object to temporary custody under this Chapter, and he is not entitled to notice of such proceedings.

(c) Dependency Actions. Under Chapter 39 of Florida Statutes, the State may file a shelter petition to shelter a child from its parents. The State or any person with knowledge that the child has been abused, abandoned or neglected, may file a petition for dependency to have the child adjudicated dependent. While entitled to notice of a dependency action, an unmarried biological father is considered only a “participant,” not a “party,” in any dependency action relating to his child. This means that he is entitled to notice and may address the court; however, he is not entitled to a court-appointed attorney nor can he cross-examine witnesses, obtain discovery documents, etc. If he files a petition to determine his paternity under Chapter 742 of Florida Statutes and is adjudicated the father of the child, then he becomes a party in the dependency action. (Click here for law pertaining to determining parentage.)