Legal Question in Family Law in Florida
My child was born under wedlock a year ago. I'm in process of a divorce and my soon to be ex-husband is not the biological father, but he is considered to be the legal father. Neither men are on my child's birth certificate, neither men have taken a DNA test or documented on paper or through the court who the father is, and neither men pay child support (I'm also not pursuing it). The biological father hasn't established paternity (not sure if he will, and I don't care if he does). Can the biological father establish paternity if my "husband" decides to recognize and take over responsibility? I was told No but want to make sure. Who has more rights at this moment? The legal father or biological father?
2 Answers from Attorneys
This question is currently being decided in the coiurts. There are conflicting decisions. Traditionally, a child born while two people are married is conclusively the child of the husband. Some courts have ruled to the contrary.
Your husband is the legal father of the child, as you've said. For all intents and purposes, your husband is legally the equivalent of the biological father in that he can seek timeshare (custody or visitation) of the child and could be responsible for child support. This will remain the case unless the biological father files a suit for paternity. If the biological father files for paternity, the judge may decide that the best interests of your child require that the biological father become the legal father, in which case the biological father could seek timeshare or may have to pay child support. If the judge finds that it's in the best interest of your child that the biological father become the legal father, your husband will lose his rights to the child. As a practical matter, most judges readily agree to assign paternity to the biological father when the biological father files for paternity, especially when the non-biological "father" agrees.