Dad's name is not on the birth certificate, does he have rights?
When a child is born to a woman who is married, the spouse, automatically has rights to the child. This is true regardless of what is on the birth certificate. If the spouse is not the biological Father, this becomes more complicated. – See our other post about Paternity-.
However, when a mother is NOT married at the time a child is born, the Father does not automatically have rights to the child – regardless of whether or not his name is on the birth certificate. If the Father's name IS on the birth certificate, he may have limited rights before going to Court. These “rights” include the right to be noticed, or made aware, of legal proceedings involving the child; such as a name change or adoption. The Father DOES NOT have timesharing or decision- making rights for the child. For videos on unmarried Father's and Mother's rights, visit our Youtube channel.
Petition for Paternity
In order for a Father to establish rights when the mother was not married at the time of the child's birth, he must file a Petition for Paternity. This is a confusing name because it leads you to think about DNA testing, but a Petition for Paternity is not about DNA testing (although that may be a part of the process). A Petition for Paternity could be called a Petition for Custody, but Florida does not use the term custody. This is the Petition that must be filed in order for the Father to gain decision making or timesharing rights.
Once the Petition is filed, the case proceeds much like a divorce but without the division of assets and debts. Each party must produce financial information to the other; which is later used to determine child support. Almost all cases must then go to mediation to see if an agreement can be reached. If no agreement can be reached then the matter is brought before the Judge to have a parenting plan entered by the Court. The parenting plan outlines the timesharing and decision-making rights for the child. This will include everything from a regular schedule, to holidays, to where the child will attend school.
All of these issues will be resolved by determining what is in the best interest of the child. In many cases, especially when the child is young, the Father has been substantially involved and there are no other major issues, such as drug use or domestic violence, the Court will attempt to give the parents equal, or nearly equal timesharing rights. Equal timesharing is not guaranteed and sometimes there may be a transition period for the child. In some cases, it is in the best interest of the child for one parent to have the majority of the time, or the mass majority. In even more rare cases, the other parent may not get any timesharing rights.
Almost always the Court will give the parent equal decision-making rights. For one parent to get sole decision making, that parent must prove it would be detrimental to the child for te other parent to be involved in decision-making. In some instances, one parent may get to make the decision over a limited number of issues, such as medical care or educational decisions. There are situations where one parents decision making is so flawed that they cannot be trusted by the Court to make decisions for the child. Proving this is very difficult and almost always must be done with the assistance of an experienced attorney. It is easier to get the timesharing to be less than equal than it is to get a parent to be left without decision-making rights.