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  1. #1
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    Default Is a Presumption of Custody in Favor of an Unwed Mother Unconstitutional

    My question involves paternity law for the State of: FL

    In my research, many states seem to be doing away with the presumption in favor of mothers as sole custodians of children born out of wedlock when both parents acknowledge paternity

    In Florida, it would seem that some districts are also doing the same in response to changes in society, seeing as how 40% of children are born to unwed mothers but the law still remains written as

    FL Sta 744.301(1) Natural Guardians
    The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated pursuant to chapter 39.....
    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 unless the court enters an order stating otherwise.


    Would this statute stand up to a constitutional challenge if the unwed father could prove he is similarly situated to the mother? Or does would the statute stand if it serves the greater good of the state where most fathers do not assume the same or greater responsibilities for a child the way the mother is presumed to?

    I know that FL has no presumption for either the mother or the father when it comes to shared parenting (time sharing) but that requires court action. Would granting legislative preference in the mother before court action is taken be a violation of due process and equal protection under the law?

  2. #2
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    Do you understand why there is such a presumption?

  3. #3
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    I understand why there would be, but should there be? And should the right case come along on appeal, will that presumption stand?

    In the past (20+ years), a presumed father couldnt even assert any parental right unless the mother allowed it, finding the the paternity laws (establishment of paternity FL 742.10) was only exclusive to mothers to turn a fathers moral obligation to support his child into a legal one.

  4. #4
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    There's no constitutional issue.
    Quote Quoting Stewart v. Walker, No. 4D08-838, 2009 WL 454496 (Fla. 4th DCA Feb. 25, 2009)
    Section 744.301(1), Florida Statutes (2007), provides that:

    The mother and father jointly are natural guardians of their own children and of their adopted children, during minority.. . . 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 unless a court of competent jurisdiction enters an order stating otherwise.

    § 744.301(1), Fla. Stat. Under the statute, 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." State v. Earl, 649 So. 2d 297, 298 (Fla. 5th DCA 1995) (citing DeCosta v. N. Broward Hosp. Dist., 497 So. 2d 1281 (Fla. 4th DCA 1986)). The last sentence, which states that the mother of a child born out of wedlock is the natural guardian, applies only when there is no father who has declared his paternity and acted like a father to the child. Id.
    If you want equal rights, you have to step up. If you choose not to establish paternity and choose not to act as a father, you have no basis to complain that the mother is presumed to have custody.

  5. #5
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    Stewart v. Walker unfortunately is not the controlling common law interpretation in my district, which weirdly is the same one that issued the above opinion

    Perez v. Giledes is

    We have considered, but deem distinguishable, multiple authorities that recognize a father's rights and obligations under the first sentence of this statute. See, e.g., DeCosta v. North Broward Hosp. Dist., 497 So.2d 1282 (Fla. 4th DCA 1986); State v. Earl, 649 So.2d 297 (Fla. 5th DCA 1995). None, however, involved a dispute between the mother and father over temporary residential care and custody in the absence of a judicial determination of paternity or parental rights. DeCosta, for example, was simply a recognition of the father's obligation for medical services rendered. The fact that Father has enforceable rights and obligations by virtue of his acknowledgement of paternity does not equate to his having a right to temporary custody superior to the mother's prior to a court declaration to that effect. For the limited purpose of this temporary order, it is sufficient for jurisdiction that the mother was a Florida resident when the child was born, that the child was born in Florida, and that the mother, after living in Georgia for a time, again resides here.

    The above interpretation would impose an extra step of court ordered paternity when the law does not.

  6. #6
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    Of course, one way to solve the problem would be for men to cease fathering children upon women they are not married to.

  7. #7
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    That is indeed. I don't dispute the merits of marriage, as I am now. But the reality though is that many are not and deal with issues as this and hold themselves out to be more than just financially obligated

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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    Quote Quoting cbg
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    Of course, one way to solve the problem would be for men to cease fathering children upon women they are not married to.
    Or for dad to not sit on his hands, if he wants to be the custodial parent, rather than doing nothing while mom does all the work and later whining about how unfair it is that the court has a presumption that is consistent with that reality.

    Seriously -- if dad has custody and wants to formalize it, he can bring a custody action and the presumption amounts to nothing.

  9. #9
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    Default Re: Is Florida in for a Constitutional Storm in Regards to Paternity

    Quote Quoting AmericanDadof5
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    That is indeed. I don't dispute the merits of marriage, as I am now. But the reality though is that many are not and deal with issues as this and hold themselves out to be more than just financially obligated
    There is good reason for the presumption. The child comes out of the mother's body and the child goes home with the mother from the hospital. It is absolutely clear (with the exception of assisted reproduction) just exactly who is the mother of the child. As a result, the child gets primarily bonded to mom in most cases, and therefore its in the best interest of the infant to remain in mom's primary custody.

    It is less clear with a father as one can never know, with absolute certainty, who the father of the child biologically is without a DNA test, even if said father signs an affidavit of paternity at the hospital. Therefore without the protection of marriage, a father needs a court to assign him his specific rights.

    A father can do that quite promptly. Heck, the father can have the paper's drawn up and ready to submit to the court as soon as the baby is born. Therefore the only fathers who are impacted by the mother's default custody are the fathers who do not act promptly to establish their rights.

    I will also add, that even within a marriage or within a situation where the state has already recognized paternity there still is no clear protection. In that situation both parents have the legal right to have the child with them, and the legal ability to deny the other parent access until custody matters are decided by the court. Therefore neither parent really ever has the right to demand that the other parent give them the child, no matter what the law says, unless there are court orders allowing them to do so.

    So, bottom line, any dad who doesn't feel like he is not getting a fair shake, hasn't made the proper effort to establish his rights.

  10. #10
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    Default Re: Is a Presumption of Custody in Favor of an Unwed Mother Unconstitutional

    Quote Quoting Mr. Knowitall
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    Or for dad to not sit on his hands, if he wants to be the custodial parent, rather than doing nothing while mom does all the work and later whining about how unfair it is that the court has a presumption that is consistent with that reality.

    Seriously -- if dad has custody and wants to formalize it, he can bring a custody action and the presumption amounts to nothing.
    Not all dad's who don't formalize it sit around while mom does all the work and thats where presumption can hurt a bit.

    Presumption for the unwed means mother gets primary which is often means a father's paternity action is denied because he still not entitled to "no presumption" based custody or time sharing decisions. It means a father has to prove the mother unfit and excludes him from temporary or emergency relief.

    Or we have conflicting statutes

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