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In Florida, is a Child Born to a Married Woman Presumed to be Her Husband’s?

Paternity3

Suppose that a married woman in Florida falls in love with someone else and decides to leave her husband for her new lover. The woman moves out of her marital home and moves in with her new boyfriend. While living together the woman and her boyfriend decide to have a child together and welcome their new baby into the world before the woman is legally divorced from her husband. Even if the woman, her boyfriend, and her husband all know that the baby is the boyfriend’s biological child, the hospital staff will not let the boyfriend sign the baby’s birth certificate at the hospital upon finding out that the woman is legally married to another man. But why? Because in Florida, a child born to a married woman is legally presumed to be the child of her husband.

Despite the fact that genetic testing now enables us to easily and quickly determine a child’s paternity, there are still paternity laws on the books in Florida left over from a time when such tests were not so readily available. One of these laws is contained in Florida Statute section 382.013(2)(a) and states that “if the mother is married at the time of [her child’s] birth, the name of… [her] husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” In other words, when a married woman gives birth to a child in Florida, the woman’s husband is presumed to be the legal father of the child, unless paternity has been otherwise determined. This means that a husband, who is presumed to be the father of his wife’s child, can be automatically entrusted with all of the legal rights and responsibilities of fatherhood even if someone else is the child’s biological father.

How to Overcome a Child’s Presumed Paternity

If a child’s biological father and mother are not married to each other when the child is born, then the biological father has no legal relationship with the child, and if the mother is married to someone else at the time of the birth, then her husband is legally presumed to be the child’s father. This presumption can be overcome, but be aware that this area of the law is very complicated and that retaining the assistance of an experienced family law attorney when attempting to overcome a presumption of paternity is highly advisable.

The most simple way to overcome the presumed paternity of a married woman’s child is to have her husband cooperate with a disestablishment of paternity, including having him sign a legal document stating that he is not the biological father of the child and that he freely gives up all of his legal rights and responsibilities in connection with the child. However, if the husband is not willing to sign such a document, then overcoming the child’s presumed paternity becomes much harder. In this situation, the biological parents of the child would likely have to petition the court to determine the child’s paternity.  Regardless of whether the husband will cooperate, it is highly advisable that you consult with an experienced family law attorney to help navigate through this issue.

Reach Out to Us for Help Today

If you have a paternity issue that you would like to discuss with a local Florida paternity attorney, contact the Law Offices of David L. Hirschberg, P.A. without delay. Paternity attorney David Hirschberg would be happy to discuss your legal rights and options with you during a confidential consultation at our Boca Raton office, so feel free to give us a call today at (561) 288-8620.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0382/Sections/0382.013.html

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