by Patrick Gaffney

With the advent and increased prevalence of genetic testing, one would think that establishing paternity today would be easier than ever.  If biology alone was the sole factor in determining parentage, you would likely be correct.  However, biology alone does not determine parentage.

In Florida, there is no law ordering genetic testing to be automatically administered at the time a child is born. It is clearly the law in Florida that a child born or conceived during a lawful marriage is a legitimate child of the mother and the man to whom she is married.  Thus, a putative father is generally not allowed to intervene in a dissolution of marriage proceeding to assert paternity over the objection of the husband.  Likewise, he will generally not be able to successfully file an action for paternity over the objection of the husband under Ch. 742.21.

Since 1997, however, there has been a difference in Florida between “legitimacy” and “paternity.”  Those two concepts are “related, but nevertheless separate and distinct concepts.” As the result of Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997), a child can be a legitimate child of a marriage, but have no right of support from the man to whom the mother was married on the date of birth.  A husband can deny paternity in a dissolution of marriage proceeding and avoid any duty of support.  Although HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993) and some of its progeny have spoken of terminating the parental rights of the husband, other cases make it clear that the rights of a parent may not be terminated in any proceeding other than a termination of parental rights proceeding under Ch. 39 or Ch. 63.24

Parents cannot stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child.  Such an order is void, leaving open the possibility that the later-born child can petition for paternity and child support.  Florida public policy and law are unequivocal in declaring that parents cannot barter away the interests of their children or exclude the courts from reviewing terms or conditions of custody, visitation, or support.  An order based on a stipulation between the parties providing that the husband has surrendered and waived all parental rights in return for the wife’s waiver of entitlement to child support is void for lack of jurisdiction in that it attempts to sever parental rights without invoking any of the statutory provisions governing termination of parental rights.

Whether a man may be recognized as a father to a child in Florida is often unrelated to issues of biology and genetics.  Rather than a simple, single concept of “father,” Florida may be moving toward an understanding of fatherhood as a bundle of rights and duties, which may at times be divided among different men with respect to a single child.1

1 This blog has taken liberally from Fatherhood in Florida by Judge Sue Robbins The Florida Bar Journal December, 2010 Volume 84, No. 10. Retrieved from:

Contact us

Peacock, Gaffney, & Damianakis, P.A.
Phone: (727) 796-7774
Fax: (727) 797-6317
2348 Sunset Point Road
Suite E
Clearwater, Florida 33765

Click here for map