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Determining Child Custody between Unmarried Couples


While divorce rates have been generally decreasing throughout the years, separation is still never easy for anyone involved. Especially when children come into the picture, it is central to establish clear expectations of child custody, visitation, and child support. The couple is expected to agree upon terms and conditions that will maintain respectful boundaries with each other and the child.

Compromising on these matters is already a difficult feat in itself, but the equation can be even more complicated when the couple separating is unmarried. If you find yourself in this position, it is vital to know your rights and Florida’s custody laws.

Rights as an Unmarried Parent

If the couple is unmarried and the father is not present to sign the child’s birth certificate, the mother is automatically given custody at birth. Thus, the mother becomes the child’s sole natural guardian. This preferential treatment occurs because she was the one who carried and gave birth to the child. Additionally  Florida law states that “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 the court enters an order stating otherwise.” § 744.301, Fla. Stat. Ann.

Even if the Father is present and signs the birth certificate, without a Court Order,  the state of Florida does not grant the father any custody rights to the child.  The Father has no rights, no privileges, only the responsibility to pay child support until paternity is established by a court. 

Why Should I Establish Paternity? 

Establishing paternity is necessary to grant equal rights to both parents. Acknowledging the father on the birth certificate is also beneficial so a child can know their biological father’s identity. The state of Florida prefers to give parents equal custody and timesharing rights.

Failing to establish paternity allows the father to temporarily evade paying child support. At this cost however, the father also loses rights to shared custody and visitation. As a result, the father’s influence in his child’s life is limited by the mother’s wishes. If the father wishes to take part in his child’s life, it is important to become legally established as their parent.

How Do I Establish Paternity? 

A Petition to Establish Paternity can be filed with the Circuit Court of any county within Florida.  This means that it is in effect, a race to the courthouse, if a parent wants to dictate where the legal proceedings will occur.  While it is helpful to for a father to be listed on the birth certificate or to claim paternity by becoming listed on the putative father registry  within the Florida Bureau of Vital Statistics, such measures are insufficient without petitioning the court for an Order establishing rights, privileges and responsibilities. 

Once paternity is established, the court will order a parenting plan that includes time sharing, parental responsibility and child support. The judge will review the petition and evidence and rule in favor of the child’s best interests should the parents be unable to resolve the matter with counsel or through mediation. The procedures are similar to the process a divorcing married couple would have to go through. 

What Happens When the Parents Get Married? 

If the parents decide to get married, equal rights to the child will automatically be granted. Even without a paternity test, Florida law will consider the couple to be the child’s legal parents naturally.

What If I Am Already Ordered to Pay Child Support, But the Child Is Not Mine?

An action for Disestablishment of Paternity can be filed in Florida if you believe the child is not your natural child.  Should you be the Husband at the time the child was conceived or born, you are deemed the father.  Should you fail to respond to a court document or a request from the Florida Department of Revenue, Division of Child Support, you may be deemed the father.

Once the order establishing paternity is entered, the court may take into consideration, DNA testing, the established relationship between the “father” and child, another person’s claim of paternity and any other factor that relates to a determination of the best interest of the child.

If you believe you have been wrongfully labeled as the father of a child contact an attorney quickly. Any delay can create complications as the child’s bond to you will be taken in consideration by the Court.

Want More Information on Custody as an Unwed Parent? 

If you are an unmarried parent that is looking for more information on your rights to your child, our Fort Lauderdale paternity attorneys at Baginski, Brandt & Brandt are here to help. We are prepared to give you professional and informed input. For a free consultation, contact us at 772-466-0707 today.





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Port St. Lucie 8483 S. U.S. Highway One
Port St. Lucie, Florida 34952
Stuart By Appointment Only 100 SW Albany Ave., Suite 300k
Stuart, FL 34994
Fort Pierce By Appointment Only 311 S 2nd St., Suite 102b
Fort Pierce, FL 34950
Telephone: 772-466-0707 Fax: 772-223-9290 or 772-466-0907 Office Hours: 8:30 to 5:00pm M-F