When a child is conceived and born to two persons who are not married, the mother is considered the primary custodian of the child and that gives her far greater rights concerning the child than that of the biological father. Indeed, the biological father essentially has no rights until such time that there is an adjudication of paternity by the court. Until there is such an adjudication, the father has no legal rights to timesharing with the child. In fact, until there is such an adjudication, the mother is not subject to any statutes that restrict her from relocating with the minor child even to another state or country.
Unlike a divorce in which it is required that one of the spouses reside permanently in Florida prior to the filing of the action, there is no residence requirement for a paternity action. A paternity action may be filed in the county where either the father or the mother resides. If there is a question with regard to the status of the father as the biological father, scientific testing can be required.
When paternity of a child of a woman who is married to another man is involved, there is a presumption that the woman’s husband is the father. The presumption that a man married to the biological mother is the legal father of the child has been termed the strongest rebuttable presumption known to the law. The presumption, however, is not conclusive and may be overcome with clear and convincing evidence based primarily upon the child’s best interests (and not the biological father’s best interests or desires). The biological father must prove he has manifested a substantial concern for the welfare of his illegitimate child (n/k/a child born out of wedlock) before even being accorded standing to assert an interest with respect to the child.
Once paternity is adjudicated, the Florida statutes and case law pertaining to the issues of child support, timesharing, parental responsibility, relocation by the mother with the minor child, among others, all then come into play effectively as if the parties were married and divorced.