Sometimes the relationship between an unmarried mother and father falls apart before the child is born. In such a case, either parent may be forced to turn to the Courts to determine paternity and child support. Can a party file a paternity action before the child is even born?
In Florida, the law is clear that a Mother may file an action in the Circuit Court to determine who is the Father of her child. A “Paternity Action” under Florida Statues may be filed by the Mother both before the Child is born (while pregant) and after the child is born.
A possible Father may file an action in Court at any time after the child is born. It is not so clear whether the Father has the ability to file an action before the child is born. The Florida statute is silent on this issue. But this interpretation may very well raise constitutional concerns. Specifically, does this Statute violate the Equal protection clause of the US and Florida Constitutions?
OK, so, what happens if dad fears that mom might leave the state before or after the child is born? Does he have to wait? Should he wait?
Here’s where it gets complicated. Fathers not only have to look to Florida law, but also Federal Law – The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) mandates that the paternity action must be brought in the child’s Home State. But, the Act defines a child as an individual who has not reached the age of 18. Can an “individual” be an unborn child?
So, if Mom decides to leave and “go home” to another State where her family resides before the child is born, then the Father may very well lose jurisdiction in Florida and would be forced to file in the new state. In such a case, the Father may have been wise giving it a shot in Florida. Who knows, Mom might consent to Florida jurisdiction or file a counter petition which would clear up any jurisdictional issues. The Father’s worst case scenario would merely be a dismissal of the action.
Debra G. Simms
