The answer to this question is not a simple one and can vary depending on the facts, as well as which statute you are focusing on. For the purposes of this article, the focus will be on a man’s parental rights under Florida Statute 744, and how it differs generally from Florida Statutes 61 and 742.
Generally speaking, if a child is born out of wedlock, then there may only be a presumption of paternity if the putative father is listed on the child’s birth certificate.
Under chapter 742, this doesn’t necessarily mean that the father is simply given all relevant rights of child rearing however. Under this section of the law, a man will need to file a petition with the circuit court to establish paternity.
Until that time however, a mother may be considered the natural guardian and may effectively do whatever she pleases, including taking the child out of county or State without your permission or knowledge.
However, if the child is born during the course of the man’s intact marriage to the mother, then the child is presumed to be born of that marriage.
This means that a Father whom is about to go through, or is going through, a divorce may begin that process with the same rights to the child as that of the mother.
This applies even if a child is born to an intact marriage by a man other than the husband. In that case, the actual biological father may be entitled to even less, as the Husband would be considered the legal father and presumed to be the biological father.
Finally, how does chapter 744 differ from the above and do fathers have the same parental rights as mothers?
Florida’s guardianship statute begins with a very similar message as the above in that chapter 744 provides, “…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…” Fla. Stat. §744.301(1).
However, the guardianship statute differs ever so slightly in that even though it appears to favor the mother on its face, the application of that statute in the case law appears to provide greater rights to a putative father than the other two previously mentioned statutes.
For example, in Stewart v. Walker and State v. Earl, “…when an unwed father demonstrates and carries out the requisite settled purpose to be a father, he comes within the first sentence of the statute, making him a natural guardian along with the unwed mother.” Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009). See also, State v. Earl, 649 So. 2d 297, 298 (Fla. 5th DCA 1995).
Regardless of whether you are a husband or a father, or both, don’t hesitate to contact Men’s Rights Law Firm today to help determine your rights. 239-829-0166.