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Fathers of Children Born Out of Wedlock Beware

by Curtis R. Cowan, Esq., Board Certified in Marital and Family Law

Everyone knows a happily monogamous couple who lives together, raising their children together, but they never married. Right? It used to be that babies followed marriage and "couples" would marry upon discovery that the woman was pregnant. But society has changed. In today's society we have the largest number of unwed parents in our history. This trend is advanced by many celebrities: Goldi Hawn and Kurt Russell; Angelina Jolie and Brad Pitt; and many others. Although society has evolved to accept this trend as normal, the law has not. The law may not adversely affect multimillionaire unwed celebrity parents, but the law does have an adverse effect on the average unwed parents, particularly the fathers. Such fathers need to beware.

Let's look at a couple of typical scenarios: Chad and Maggie fall in love, and Maggie gets pregnant. They live in Florida. They have the child and live together and begin raising the child as a couple. Then they have two more children. Of course, Chad is on the birth certificate and the children even have his last name, and, therefore, Chad is the legal father, right? Wrong! He thinks he is, but he is not. One day, when their children are 10, 8, and 6, respectively, Chad comes home from work to find Maggie and the children are gone. The note left on the kitchen table merely says, "Chad, the kids and I have left to start a new life." Chad has no idea where they are or how to find them. He hires a Private Investigator who seven months later tracks them down in California. Chad immediately goes to see a lawyer to get the children back.

Then there is Danny and Sarah. They had sex and conceived a child, but never married and never even lived together. They both lived in Fort Lauderdale. The Florida Department of Revenue (DOR) filed a paternity action against Danny to establish he is the father and require him to pay child support. The court entered a final judgment establishing Danny as the biological father and required him to pay child support. Sarah and Danny remain friendly and they informally agree for Danny to have timesharing with the child. Danny sees the child every other weekend for overnights on Friday, Saturday, and Sunday, and every Wednesday overnight. Danny sees the child on half the holidays and three additional weeks during the summer. As the child grows, Danny is a very involved father. He coaches the child's baseball and football little leagues. He takes the child fishing, camping and to professional sporting events. One day when the child is 7 years old, the Mother informs Danny she has just married her long-time boyfriend and they are moving to Tampa the next day for her husband's new job. Danny objects and the following week goes to see a lawyer.

Unfortunately, both Chad and Danny are told at the initial consultation that as they sit there right now neither of them has any right to the children whatsoever. Chad is outraged! He says, "How can that be? I am on the birth certificate; I have lived with the mother for over 10 years and have been raising the children equally with her! They even have my last name!" Danny equally outraged says: "That's crazy! I have a court order establishing me as the father. I have been paying child support for seven years and never missed a payment. I am a great and involved father."

However, here is the law: "The 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 a court of competent jurisdiction enters an order stating otherwise." Fla. Stat. §744.301(1)(2011)(emphasis added). In plain English what this means is it makes no difference whether a father is on the birth certificate or whether he is participating in raising the child, a father of a child born out of wedlock has no parenting rights or timesharing rights (formally known as "custody" rights) until a court that has jurisdiction over the child enters an order granting such rights to the father.

Chad has never been involved in any court matter involving the children, but that is not true with Danny. Danny has rights because a court of competent jurisdiction entered an order establishing him as the father and required him to pay child support, correct? No, not correct. "If a judgment of paternity contains only a child support award with no parenting plan or timesharing schedule, the obligee parent [usually the mother] shall receive all of the timesharing and sole parental responsibility without prejudice to the obligor parent." Fla. Stat. §742.031(2)(2011)(emphasis added). Remember Danny had and exercised timesharing based on an agreement with the mother, but the agreement was never adopted as a judgment or order of the court. In Danny's case although paternity and child support were established by court judgment, the action was brought by the DOR, not directly by the mother. An action brought by the DOR for paternity and child support cannot deal with parenting plans and timesharing schedules. Danny would have been required to bring his own separate action to establish those rights.

But both Chad and Danny had done their own informal research before consulting with their lawyers and informed their lawyers that they were aware Florida had a relocation statute that not only prevented parents from relocating without either the consent of the other parent or a court order, but also the court could enter an immediate pick-up order without prior notice to the mother to have the children returned.

Now this is where it gets tricky. There is such a statute, and there is such a pick-up order procedure, but unfortunately they do not apply to unwed fathers who have no prior court-ordered timesharing rights. As of October 1, 2006, Florida Statute 61.13001, entitled "Parental relocation with a child", became effective. The statute was amended in 2008 and again in 2009. The relocation statute in its present form is highly misunderstood by many attorneys and even judges.

First, the relocation statute specifically defines two categories of persons to which the statute applies. The most common person is a "parent." A "parent" is defined as "a person so named by court order or express written agreement who is subject to court enforcement or a person reflected on a birth certificate and who is entitled to access to or timesharing with the child." Fla. Stat §61.13001(1)(d)(2011)(emphasis added). Neither Chad nor Danny is a "parent" under this definition because neither of them ever had a court-order entitling them to access or timesharing with the children.

The second category of persons is "other person." However, "other person" is a person, not a parent but with whom the child lives pursuant to a court order or who otherwise has the right of timesharing with the child. See Fla. Stat §61.13001(1)(c)(2011). This applies to persons who have received court-ordered timesharing rights usually under temporary custody of a relative, dependency placement or guardianship/foster care situations. Again, it does not include Chad or Danny.

Furthermore, the relocation statue makes clear that it only applies to either "parents" or "other persons" (as defined above) in three situations: (1) to court orders entered prior to October 1, 2009, if the orders did not otherwise specifically deal with relocation; or (2) to court orders entered on or after October 1, 2009; or (3) proceedings pending on October 1, 2009 in which there is no court order, but in which parenting plan and timesharing schedules are an issue. See Fla. Stat. §61.13001(11)(a)1,2,3 (2011).

Therefore, because neither Chad nor Danny had any orders entered granting them timesharing rights either before or after October 1, 2009, and no case was pending on October 1, 2009, the relocation statute does not help them.

Chad and Danny are not completely without hope. They both still have the right to file an action to obtain parental rights, including timesharing rights. The only issue is where they can file the petitions. The jurisdiction and venue of Chad's and Danny's future petitions are beyond the scope of this article. However, Chad may have to file the petition in California, and Danny may have to file the petition in Tampa. In either event, it is questionable whether the children will ever be required to be returned permanently to either Chad or Danny in Florida.

The purpose of this article is preventative, not subsequent remedial. Could Chad and Danny have avoided these problems so that the relocation statute would have been available to them as a remedy? Yes! In Chad's case he could have filed for paternity to establish that he was the father of the children and to establish timesharing rights. Of course, he would have had to file a new action for each of the three children. Because Chad was actually living with the mother and jointly raising the children in the same household, they could have agreed on a joint parenting plan in which they agreed to raise the children from the same household with equal and joint timesharing. They could include in the agreement that child support is not required due to the fact that they are jointly living together and pooling their financial resources in order to support the children. They would have been wise to include a provision in the parenting plan that neither parent could remove the children from the area without the written consent of the other party adopted as an order of the court or otherwise by order of the court. If they had entered into the agreement subsequent to the relocation statute, they could have merely stated neither party may relocate with the children without complying with Florida Statutes section 61.13001 as amended from time to time.

In Danny's case he merely needed to file his own paternity action to establish a parenting plan and timesharing schedule. He could have used as the basis of paternity the prior adjudication of paternity in the DOR case, but the parenting plan and timesharing action would have to have been filed as a separate action. Danny and the Mother merely needed to put the agreement they had in writing and have it adopted by the court. Additionally, Danny may have been entitled to a child support reduction as part of his action based on the number of overnights he exercised with the child.

If you or anyone you know is an unwed father involved with his child or children without a court-ordered timesharing right, then you or that person should consult with a Florida Board Certified Family Law attorney. Board Certification is the Florida Bar's highest level of recognition of competency and professionalism. Only Board Certified attorneys can represent themselves as specialists or experts in the area of certification.

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Attorney Curtis R. Cowan

Attorney Curtis R. Cowan

I am a Board Certified Marital and Family Lawyer and certified mediator with more than 25 years of experience in this field. As a solo practitioner, I am accessible to the clients I serve in and Broward County. Contact my Ft. Lauderdale office at (954) 769-0670, or click here to send us an email.

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