Legal Father Trumps Biological Father, Sometimes.

It’s not uncommon for a married woman who is separated from her spouse to find herself pregnant, and her spouse is not the biological father. Naturally, questions arise of who is the baby’s father, and whether that 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 adjudicated 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, but rather a parent.)

The next logical question is: Between the legal father and the UBF who’s established paternity, whose rights trump? The law does not consider a spouse and UBF to have equal rights. 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.

The contents of this website are intended for informational purposes only, and not to be construed as legal advice. Please consult with an attorney of your own choosing to determine your legal rights and obligations.

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