[goodmominFL]

I was married in 1998 (in Ohio) and my husband and I had one child together. We split up in 2001 and in 2002 I had another child with another man, but my husband was listed on the birth certificate because we're married. In 2005 my husband (though still seperated we are not divorced) moved to FL. I have both children and we are ready to file for divorce. We know that he is not the bio. but legal father of my 2nd child. In the Divorce can he sign off on the 2nd child without doing a paternity test and give me all legal rights? The real bio father has never been in the picture and I do not want to leave any room for him to try to come into our lives in the future. What can I do to ensure that I have complete legal control over the 2nd child?

[goodmominFL]

ALSO...I moved to FL as well. We are both in FL with both children. I believe the real bio father of the 2nd child is still in Ohio but I really have no clue. My biggest concern is that I do not want my soon to be ex-husband to be responsible for the 2nd child but I also do not want the real bio father to ever try to come into his life. The child is 4 and has never known him. Is it possible for my husband to sign uncontested adoption papers for my boyfriend of 3 years to become the legal father?

[aaron]

If he's not the biological father, why wouldn't you want to perform a DNA test to confirm nonpaternity? The court may well require proof of nonpaternity before entertaining any proposal to delegitimize a child.

You can explore the possibility of adoption without first marrying your boyfriend. It would be easier if you married, and proceeded with a stepparent adoption with the consent of the child's father. If you are insistent that your husband is not the father, you may be required to give notice of proceedings to the "real bio father".

[goodmominFL]

Thanks....I don't mind doing a DNA test to prove my husband is not the bio father of my 2nd child, but that is more money and we both agree that he is not. Just trying to save time and money.

Another question...if the bio. father has had no contact or ever paid child support at what point is he considered to have abandoned his child? Do I HAVE to track him down or can I proceed with a step parent adoption when my boyfriend I get married (we obvisiously can't get married if I'm not divorced yet) but he has EVERY intention of taking on full legal responsibility of the child even if we never get married. To him the child is his no matter what DNA says.

[aaron]

The Florida statute outlining termination of parental rights for step-parent adoption, Florida Statutes § 63.089, explains abandonmnent:

(4) FINDING OF ABANDONMENT.--A finding of abandonment resulting in a termination of parental rights must be based upon clear and convincing evidence that a parent or person having legal custody has abandoned the child in accordance with the definition contained in s. 63.032(1). A finding of abandonment may be based upon emotional abuse or a refusal to provide reasonable financial support, when able, to a birth mother during her pregnancy. If, in the opinion of the court, the efforts of a parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father toward the child's mother during her pregnancy.

(a) In making a determination of abandonment at a hearing for termination of parental rights pursuant to this chapter, the court must consider, among other relevant factors not inconsistent with this section:

1. Whether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or unborn child;

2. Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;

3. Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment; and

4. Whether the amount of support provided or medical expenses paid was appropriate, taking into consideration the needs of the child and relative means and resources available to the person alleged to have abandoned the child.

(b) The child has been abandoned when the parent of a child is incarcerated on or after October 1, 2001, in a state or federal correctional institution and:

1. The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;

2. The incarcerated parent has been determined by the court to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, convicted of child abuse as defined in s. 827.03, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this subparagraph. As used in this section, the term "substantially similar offense" means any offense that is substantially similar in elements and penalties to one of those listed in this subparagraph, and that is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction; or

3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child.