Eliana, thank you for the additional information. It helps to clarify what is going on. It is important to remember that if there is a court order in place, regarding shared parenting time and visitation, he needs to comply. His failure to do so could result in him being held in contempt of court and the Judge stepping in to take action. If you have been awarded specific time by the court, he can not take it upon himself to stop or prevent that from happening. As such, one of your goals should be try and have him help in contempt. As far as your current attempt to gain residential custody, the Judge is going to want to see a substantial change in circumstances since custody was previously ordered and that it is in the best interest of the child, to now go live with you. If he has her in a dangerous environment at this time, it is certainly a basis to use to get the custody modified. The proof you have and witnesses will certainly need to be presented to the Judge, who can then weigh that information on the situation and if it is best to have your daughter now live with you. As far as the issue with him being the father and you thinking it is not possible, that is going to be a lot more difficult to deal with. It is clearly the law in Florida that a child born or conceived during a lawful marriage is a legitimate child of the mother and the man to whom she is married. Thus, a putative father is generally not allowed to intervene in a dissolution of marriage proceeding to assert paternity over the objection of the husband. Likewise, he will generally not be able to successfully file an action for paternity over the objection of the husband under Ch. 742.21 However, it may be narrowly possible for the putative father to establish paternity even over the objection of the husband through a Ch. 742 proceeding or a declaratory judgment
action, if the putative father is able to prove that he has established a relationship with the child and that the husband has been remiss in fulfilling his role as a father.
Since 1997, however, there has been a difference in Florida between “legitimacy” and “paternity.” Those two concepts are “related, but nevertheless separate and distinct concepts.” As the result of Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997), a child can be a legitimate child of a marriage, but have no right of support from the man to whom the mother was married on the date of birth. A husband can deny paternity in a dissolution of marriage proceeding and avoid any duty of support. Although HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993) and some of its progeny have spoken of terminating the parental rights of the husband, other cases make it clear that the rights of a parent may not be terminated in any proceeding other than a termination of parental rights proceeding under Ch. 39 or Ch. 63.24
Parents cannot stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child. Such an order is void, leaving open the possibility that the later-born child can petition for paternity and child support. Florida public policy
and law are unequivocal in declaring that parents cannot barter away the interests of their children or exclude the courts from reviewing terms or conditions of custody, visitation, or support. An order based on a stipulation between the parties providing that the husband has surrendered and waived all parental rights in return for the wife’s waiver of entitlement to child support is void for lack of jurisdiction in that it attempts to sever parental rights without invoking any of the statutory provisions governing termination of parental rights.
A final judgment of dissolution of marriage is generally regarded as res judicata on the issue of paternity of the children who were conceived or born during the marriage. Fraudulent misrepresentation about biological paternity is intrinsic and not extrinsic fraud
, thus, affecting the date for filing a motion for relief from judgment or action assailing the judgment. This outcome has been changed to the extent that Ch. 742 now allows disestablishment of paternity under some circumstances.
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