Assumption Of Paternity And Divorcing Parents
Under Florida law, children born during a marriage are considered the children of the couple. This is the case even without conducting a paternity test. That means that a husband is considered legally responsible for the children born into the marriage, even when he is sure another man is the biological father, and the child is conceived before the marriage. As can be imagined, this may cause some problems for some soon to be ex-husbands when it comes to issues of child support.
Even today when DNA tests are readily available, courts do not need a DNA test or to establish paternity in order to require a former husband to pay child support for children born when the couple was married. The former husband is considered the legal father of the children even though he is not the biological father of the children. Because the former husband is considered the legal father, he has parental rights in addition to financial obligations over the children. The legal father can seek custody as well as visitation with the children.
If there is a question of paternity in a divorce, the husband may ask the court for a paternity test to prove he is not the father. In fact, this is the best time for the husband to establish that he is not the child’s biological father, and should therefore not be required to pay support. It becomes harder to disestablish paternity after the divorce is finalized and child support has been ordered.
If support is already ordered, the legal father can petition a court to change the order and release him from the child support obligation if he has since discovered new evidence, such as a DNA test, showing he is not the father. In order to make this petition, the legal father has to be current on his previously ordered child support payments. In addition, the legal father is still obligated to make payments until the court makes a ruling on the petition. This kind of petition to disestablish paternity is required to be filed within a specific timeframe or the legal father could lose the chance to make the petition.
In some situation, paternity may not be disestablished, for example if the legal father acknowledged paternity in some way after learning he was not the biological father. Also, if a husband adopted the child during the marriage because he knew the child was not biologically his, or signed what is known as a voluntary acknowledgment of paternity, he cannot file a petition to disestablish paternity of the child after the divorce.
Once paternity is disestablished, it is not possible for the person who was previously considered the legal father to seek a reimbursement of paid child support.
Contact Us for More Legal Information
If you are going through a divorce and are concerned about child custody and support issues because your husband is not the biological father, you need to talk to our experienced child support lawyers at the Law Offices of Schwartz | White in Boca Raton, Florida, for information on how Florida’s law on parentage during a marriage applies to your situation.
Resources:
floridahealth.gov/certificates/certificates/birth/_documents/DH_432_Ack_Paternity.pdf
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.18.html
