Fatherhood in Florida by Judge Sue Robbins

WHY IS THIS A CRITICAL ISSUE?

The Florida Bar

Journal

December, 2010 Volume 84, No. 10

Fatherhood in Florida

by Judge Sue Robbins

Page 24

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;