My daughter and her husband are separated and its pretty ugly most of the time when they talk. She had her son in Jan of 2010 and didn't get married until June of 2011. We were told last year by an Attorney that he has no legal custody of the child because they weren't married at the time of his birth and he would have to prove paternity to have any say as to custody. Is that still so? And to get a divorce will paternity have to be established before they divorce? There is no property or money to split.
State/Country relating to question: Florida
Only been separated 3 weeks and he is threatning to have his boss help him get an attn. and take her son away from her
Thank you for posting your question to JA/Pearl. Legal questions often take time for research or I may be offline so please be patient, I will reply.It would be highly unusual for him to be able to "take her son away from her" unless he can show that she is an unfit mother in some way. He can acknowledge Paternity or he can request a DNA test. However, normally it is simply acknowledged as a part of the divorce process and included in the court order along with a determination as to custody and child support. What normally happens is that she will get what is called primary custody and he will get standard visitation which is every other weekend. It is the child's best interests for them to come to an agreement as to a Parenting Plan if that is any way possible.I don't know the situation but possibly they should seek some counseling before proceeding with a divorce. Here are the court forms for Florida and the location of the self help centers.http://www.flcourts.org/gen_public/family/forms_rules/There is also a link for low cost legal aid. The grounds for a divorce are that the marriage is irretrievably broken and there is no waiting period so she can file immediately if that is what she wants to do. Since they are separated she can immediately file for child support athttp://dor.myflorida.com/dor/childsupport/apply.htmlIf the child is not covered by health insurance she can file for Medicaid.
Practicing family law attorney
all info given was ok but my question as to if he would be able to have custody considering they were not married at the time of the birth.( just cause you marry someone that doesn't mean he's the dad) So before they were granted a divorce would he have to prove by paternity he is the father or can they just get the divorce and then settle the rest later?
Everything would be settled in the divorce including the paternity issue. If she denies he is the father, then he can demand a DNA test as a part of the divorce proceeding. If there is any doubt, then he usually would demand a DNA test and the court can order one to be done.
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