Families come in all shapes and sizes. Some families have only one parent doing it alone, while others may have a mother and father, two mothers, two fathers, or perhaps one parent with lots of extended family members who help out, etc. It is a common misconception that it’s easy to tell who a child’s mother is, just because she gave birth to the child. In our society today, that may not be the case, and the law is slowly reflecting this change. The reality is that, in some cases, establishing both the actual mother and/or father of the child may be challenging.
Paternity
For families who do have a father, “paternity” refers to establishing the identity of the biological father of a child. As a result of that, rights will then flow both to the father and to the child under the law.
Florida law provides that paternity may be established in several ways:
- When the child is born during a marriage, he or she is presumed to be the child of the married couple, and no court action is required;
- When paternity is established by the Department of Revenue;
- When paternity is raised and determined within a hearing governing inheritance, or dependency under worker’s compensation, or similar compensation programs;
- When both parties sign an affidavit acknowledging paternity, or a stipulation of paternity, and file it with the clerk of court, or
- When an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury is executed by both parties.
Contrary to popular belief, person’s name listed on the child’s birth certificate as his or her father does not establish paternity.
If paternity has never been established under one of the five points above, the parent who seeks to establish it must file a petition with the court. If the other party contests it, the court may order genetic testing of both parents and the child. Similarly, if paternity was established under one of the five points above, and there is newly discovered evidence that the father is not actually the child’s biological parent, or if other special circumstances are present, a petition to disestablish paternity may be filed.
Maternity
A family may consist of two mothers in a lesbian relationship parenting a child when, of course, only one woman carried that child to term and gave birth. The woman who carried and birthed the child is the biological mother, but in this scenario, these two women both intended to be the mothers of this child. What happens when the relationship deteriorates and the couple decides to separate? Who is the mother, and what rights does the non-biological parent have?
Both our society and the law are changing, and Florida recently recognized the fact that a child may very well have two legal mothers in the case of DMT v. TMH, 79 So. 3d 787 (Fla. 5th DCA 2011). In that case, two women in a lesbian relationship intended to jointly raise their child, and their conduct in the first two years of the child’s life showed that they were both deeply involved in her upbringing. So, the court protected the non-biological woman’s right to parent her child.
Although Florida has not labeled this a “maternity” case, it is clear that the law is shifting to reflect different types of family relationships, and that questions regarding who the mother of a child truly is are being addressed. Questions may soon arise in similar cases where there are two fathers as well.
A question that has not yet been addressed by a Florida court is point #1 in “paternity” above as it relates to same-sex marriages. When a child is born during a marriage, he or she is presumed to be the child of the married couple, and no court action is required to establish maternity or paternity. But, so far, this presumption has applied only to heterosexual marriages because those were the only types of marriages that Florida allowed. Now that marriage equality has become the law in Florida (and across the nation), there is still some uncertainty as to whether a Florida court will apply the same presumption in a same-sex marriage.
Paternity and maternity are serious matters, regardless of your family make-up. All parties, and the child, are deeply affected, so it is important that the correct determination is made by the court. At Strategic Family Attorney, P.A., we are prepared to be by your side through these family sensitive matters. Contact us for a consultation.
