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It is clearly the law in Florida that a child born or conceived during a lawful marriage is a legitimate child of the mother and the man to whom she is married. Thus, a putative father is generally not allowed to intervene in a dissolution of marriage proceeding to assert paternity over the objection of the husband. Likewise, he will generally not be able to successfully file an action for paternity and time-sharing over the objection of the husband under Ch. 742. However, it may be narrowly possible for the putative father to establish paternity even over the objection of the husband through a Ch. 742 proceeding or a declaratory judgment action, if the putative father is able to prove that he has established a relationship with the child and that the husband has been remiss in fulfilling his role as a father.
Since 1997, however, there has been a difference in Florida between “legitimacy” and “paternity.” Those two concepts are “related, but nevertheless separate and distinct concepts.” As the result of Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997), a child can be a legitimate child of a marriage, but have no right of support from the man to whom the mother was married on the date of birth. A husband can deny paternity in a dissolution of marriage proceeding and avoid any duty of support.
Parents cannot stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child. Such an order is void, leaving open the possibility that the later-born child can petition for paternity and child support. Florida public policy and law are unequivocal in declaring that parents cannot barter away the interests of their children or exclude the courts from reviewing terms or conditions of custody, visitation, or support. An order based on a stipulation between the parties providing that the husband has surrendered and waived all parental rights in return for the wife’s waiver of entitlement to child support is void for lack of jurisdiction in that it attempts to sever parental rights without invoking any of the statutory provisions governing termination of parental rights.
Source: The Florida Bar Journal
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