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  1. #1
    Join Date
    Oct 2007
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    2

    Default Putative Father's Rights Where Mother Was Married, in Florida

    Appr. 2.5 years ago i became involved in an affair as the other man with my best female friend whom I've known for over 10 years. While previously we had the occasional fling things became somewhat more serious this last time.

    When she made contact with me again this time she we got to talking and she told me that she was unhappy in her current relationship and was contimplating leaving. After awhile i confessed to harboring feelings for her for a long time and this was why i was not around. She also admitted to strong feelings and we became intimate again.

    Around december of 2006 she informed me that she was pregnant and that in all likelyhood the child was mine based on estimated date of conception and the lack of any relations with her husband during this time period. I asked that she leave her husband and that we attempt to work things out between us. She stated a desire to leave but that she was afraid for her oldest childs well being and the disruption of the family unit. This went on during the entire pregnancy and was told time and again that my daughter would know who her father was and that i would have the oppurtunity to raise our daughter. She went so far as to say that she would leave "father" blank on the Birth certificate, although during actual birth she did in fact put her husbands name there.

    October of 2007 she told her husband of her affair and that there was a chance that the youngest was my child. He called me and became confrontational and demanded that i leave his family along. She also informed me that she was sorry but that she was choosing him and to not call anymore.

    I asked for a paternity test to be conducted but have gotten no response and am attempting to comply with her request so as to not appear as a stalker so have had no contact with her.

    My question is can i have the courts demand a paternity test at this point and if i am identified as the father will i be able to receive visitation rights even though the child is currently in a "family" unit? Or have i lost my rights because i did not say anything at birth? My daughter is 2 months old today and have had as much contact with her as possible since she was 3 hours old. Usually consisting of multiple visits every week during my lunch break.

    1 more question, have been doing research and have found:

    Bellomo v. Gagliano

    From a laymans understanding with this mean that i would be unable to demand a paternity test if it was contested by both the wife and husband?

  2. #2

    Default Re: Putative Father's Rights Where Mother Was Married, in Florida

    You can file a petition for the establishment of paternity. If paternity is established you can then file for custody. They can also file for child support. Be prepared for a long and expensive battle.

  3. #3
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Putative Father's Rights Where Mother Was Married, in Florida

    It appears Florida draws a line between paternity cases involving mere infidelity and paternity cases where the putative father believed that the marriage was all-but-over. See, e.g., Lander v Smith, 906 So. 2d 1130 (Fla 4th DCA 2005). In the former context, the courts won't allow a putative father to assert paternity; in the latter, they may. Subsequent cases suggest that the Lander exception is very narrow, and courts will not ordinarily review the continuity of a marriage unless divorce proceedings were pending.
    Quote Quoting Lohman v Carnahan, 963 So. 2d 985 (Fla 4th DCA 2007)
    We distinguish Lander, which narrowly circumscribed its holding to the facts of that case. 906 So. 2d at 1135. There, the mother acknowledged the putative father as the child's father by having his name placed on the birth certificate and the putative father supported the child and bonded with him after his birth. Id. at 1131-33 . We also distinguish this case from T.B. v. M.M., 945 So. 2d 637 (Fla. 2d DCA 2006), where the putative father filed a paternity action and the mother married another man two days after she was served with process; there was no intact marriage at the time the paternity action was filed. Id. at 639.

    As Judge Altenbernd has written, these types of cases, involving "quasi-marital children," are intensely fact sensitive and "difficult, if not impossible, to address within the case law method." S.D., 764 So. 2d at 809. For centuries, the law developed on the assumption that a mother's parentage was certain, but a father's connection to a child could be open to doubt. The advent of DNA testing has changed the dynamics in these cases. In the past ten years, the law has struggled to balance the sanctity of marriage, the right of privacy, and the best interest of children against the knowledge of paternity acquired by DNA testing. In construing the existing Florida rule, the panel opinion took too narrow a view of what constituted an "intact marriage." To paraphrase Justice Jackson, "if there are other ways of gracefully and good naturedly surrendering former views to a better considered position," we "invoke them all." McGrath v. Kristensen, 340 U.S. 162, 178, 71 S. Ct. 224, 95 L. Ed. 173 (1950) (Jackson, J., concurring).
    If you wish to pursue this, I suggest that you get assistance from a lawyer.

  4. #4
    Join Date
    Oct 2007
    Posts
    2

    Default Re: Putative Father's Rights Where Mother Was Married, in Florida

    I understand that i am going to fighting an uphill battle and intend to get an attorney for this matter. I'm just trying to educate myself in regards to what i can expect. Just some issues i am still kinda unsure on.

    If i do file the motion for the dna test and they refuse, how would this effect mine and his rights under HB221? Would i be better off waiting until a potential divorce to attempt? hate the thought of losing time with my daughter but wonder if it would be best.

  5. #5
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Putative Father's Rights Where Mother Was Married, in Florida

    HB221 - are you referencing a pending house bill that isn't even a law? If so, unless and until it passes, you have no rights under the bill.

    The process for obtaining a DNA test is to begin a paternity action. Their response will apparently be to assert that they had a valid, continuous marriage, and that no testing should be allowed and your action should be dismissed. As you understand, if you wish to pursue this you should be consulting a lawyer.

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