In Florida, my estranged husband has custody of my son. He is not the boy's father. The judge was not aware of this fact when he awarded him custody. Is the order enforceable?
State/Country relating to question: Florida
Hi - my name is XXXXX XXXXX X'm a family law litigation attorney here to assist you.
The order is enforceable as things currently stand because the judge has ordered that the father has custody. HOWEVER, you should be able to get the order vacated by proving to the judge that your husband is not the father. Because he is not the biological father, he should have no right to the child, and the judge should vacate the order and give custody to the Biological Parent.
But he is NOT "the father"...
I tried to edit my question, but the page timed out apparently. Here is some more information about my case:
My son was conceived and born before we were married. My ex's name is XXXXX XXXXX birth certificate, but he never signed an affidavit of Paternity or anything else. He has supported both my son and me since he was born, but he did order a DNA test last year confirming that he is not the father, and has known with certainly that he wasn't for over a year.
My ex is also abusive, and we both have DVIs pending against each other. Since he is not the "parent," would the provision in his DVI giving him 100% time-sharing (he filed first, and the judge did not grant my petition for modification, saying he would wait and hear both cases together) be enforceable? Would I be in violation if I had my son removed from him?
Ok. Thanks for the additional information.
In this case, where the father has obviously been considered the father if he's on the birth certificate, etc.
In this case, you will have to first file a petition with the court to establish paternity and get the judge to order a DNA test to determine whether he is the father. If it turns out that the husband is not the father of the child, he should not be awarded any custody.
Because there is a standing order, it is the current law of the situation and you must honor it - even if it is wrong. The only way you can change this is by petitioning for a paternity test and also by filing an emergency petition for an injunction to stop his custody until paternity is established - the judge has sole discretion as to whether or not to grant this.
Thank you for your aswer. What about the DVI issue, and its provision for 100% time-sharing to the "father." The DVI states: "You must the natural parent, Adoptive Parent, or guardian by court order of the minor child(ren)." Even if the DVI is upheld (which I have no problem complying with), would that section be enforceable?
Hi - it would stand until you prove that your ex is NOT the father. Once you establish that he's not the father through Paternity Testing, he would not have rights.
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