proper use of a voLuntarY acknowLeDgement of paternitY
Marital & Family law Section Chair: Amber Boles – Law Office of Amber Boles, P. A.
Chapter 742, Florida Statutes, is used to establish paternity of children born out of wedlock. Section 742.10( 1) sets forth the methods for establishing a paternity case, including an adjudication of paternity by the Department of Revenue in an administrative support proceeding or a signed stipulation of paternity by both parents that is filed with the clerk of court.
When no stipulation exists, and no proceedings have been instituted, section 742.10( 1) provides another way to establish paternity: both biological parents must complete a“ voluntary acknowledgement of paternity,” which is signed under penalty of perjury, notarized, and witnessed by two individuals. This acknowledgment creates a rebuttable presumption of paternity that, unless it is timely rescinded within 60 days of execution, may be set aside only based on“[ f ] raud, duress, or material mistake of fact, with the burden of proof upon the challenger.”
If a child was born more than 60 days ago in a health care facility in the State of Florida and the biological father is listed on the birth certificate, a voluntary acknowledgment of paternity already exists. A“ certificate of live
birth” must be filed within five days of any birth occurring in a hospital, birth center, health care facility, or on the way to one of the foregoing. 1 A biological father’ s name cannot be listed on the birth certificate by a facility, unless both parents execute an affidavit and the father is advised of the consequences and responsibilities arising from signing the affidavit and placing his name on birth certificate. 2 If the biological parents want the father listed on the birth certificate, a Florida health care facility must have the parents execute the voluntary acknowledg ment of paternity within five days of the birth. The birth certificate itself is insufficient because it does not include the notarized signatures of both parents or the signatures of two witnesses.
The affidavit most frequently executed by parents is the Voluntary Acknowledgement of Paternity( Form DH432) issued by the Florida Department of Health. If completed properly, this form comports with the requirements of a voluntary acknowledgment of paternity under section 742.10( 1). Many biological parents do not have a copy of the voluntary acknowledgement of paternity,
a biological father’ s name cannot be listed on the birth certificate by a facility, unless both parents execute an affidavit.
even if they have a copy of the birth certificate. A parent can easily obtain a copy from the records department of the facility where the child was born. If the facility does
© Can Stock Photo / vaeenma not have it, a copy can also
be requested from the State of Florida’ s Department of Vital Statistics.
After being armed with an acknowl- edge ment, family law practitioners should allege in their pleadings that paternity over the minor child is established under sections 742.10( 1) and 382.13( 2)( c), Florida Statues, and attach a copy of the acknowledge ment. Proceeding in this manner from the outset of a paternity case avoids unnecessarily duplicating an establishment of paternity and allows an attorney to immediately assert or defend the father’ s legal rights and obligations to the minor child.
1
Fla. Stat. § 382.013( 2010).
2
Fla. Stat. § 382.013( 2)( c)( 2010).
Author: Lexie Reord Larkin- Larkin Law, LLC
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