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Legal Father v. Biological Father

Father and Son Fishing

                  Although a mother’s parentage to a child is undisputed, (given the fact that she gives birth to the child), many people also believe that being the biological father of a child is sufficient to secure their parental rights. Surprisingly to many, this notion is incorrect in Florida. There is a difference between a biological father and a legal father, and Florida law only allows a child to have one of the two.

                   In Florida, if the mother of the child is married, the husband of the mother is automatically considered the legal father of the child even if he is not the biological one. In other words, if a man has relations with a married woman and a child is conceived, the person who has the parental rights to the child is the husband of the mother, not the biological father. In fact, unless the biological father’s legal paternity is established, it is the mother’s husbands name which shall be entered on the child’s birth certificate.

                  Even if the mother of the child is not married to another man and the parties simply conceived a child out of wedlock, it is important to know that Florida gives little weight to DNA, and a lot of weight to relationship as a father’s constitutional parental rights are only established and enforceable upon the establishment of legal paternity. An unwed father has no legal rights to his child, thus giving the mother 100% parental authority, unless the father’s paternity is legally established. As counter-intuitive as it may seem, man who fathers a child out of wedlock, would have to take legal steps to become the legal father of the child in order to have parental rights.

Once a father establishes his paternity and thus becomes the legal father, he acquires parental responsibility he did not previously have, including but not limited to:

  1. Time-sharing with the child;

  2. Decision-making authority regarding health, education, and other shared parental decision making;

  3. He ensures an inheritance to the child in the event he passes away;

  4. He may prevent the mother from moving the child out of the State of Florida, or more than 50 miles from the father without written consent or a court order;

  5. Securing his right to have a say in what the child’s name will be (as well as ensuring the child has his last name);

  6.  Preserving the right to notice and consent in the event the mother decides to put the child up for adoption, including step-parent adoption;

  7. Prevents the unmarried father from being barred from contesting a petition for termination of parental rights filed by the mother, as long as his paternity was established prior to the mother filing such petition.


                  Once these rights are established, the legal father can establish a parenting plan which will includes visitation rights among many other parental rights which are enforceable in court if the mother should ever hinder the father’s time-sharing (or any other parental rights), or simply refuse to co-parent. The legal father will be required to financially support his child based on a formula which takes into consideration both of the parents’ income, the amount of overnight visitation each parent has, as well as a variety of other factors.

                     To begin the legal process of securing the status as the legal father of your child, a petition must be filed with the court.  Absent this legal proceeding, and the court granting the father decision-making and time-sharing rights, the child’s mother possesses all rights concerning parental responsibility and custody. 

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