In the State of Florida House Bill 775 Changes Paternity Forever

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Matthew Brickman (00:10):
Well, there have been more changes to family law in the state of Florida in 2023, and one of the big changes came in house Bill 7, 7 5, which related to shared parental responsibility after the establishment of paternity. So if you’d like to know the difference between, uh, a divorce action and a paternity action, I’ve got podcast episodes where we talk about both of those. But in this episode, we’re gonna talk about what was the law and what the new bill that was passed, signed and became law July one. How does that affect parental responsibility, uh, decision making in a paternity action? So let’s talk a little bit about history. So prior to this bill, for as long as I’m aware, which can go back over a couple of decades in a disillusion of marriage proceeding with children, or in a paternity case, the issues of parenting were to be worked out between the parties.

Matthew Brickman (01:21):
If the parties were not able to, well, the court would decide it, but most judges don’t want to get involved in that because that’s unique to each family. They want the moms and the dads to figure it out amongst themselves. So in Florida, we break that down into two distinct categories. We’ve got parental responsibility and decision making, and then we have time sharing. The way that I always like to describe this to people, whether it’s a divorce or a paternity action, is the two parents are equal joint CEOs of a company. The company is Child Inc. And so if parental responsibility and decision making is shared, which is the standard in the state of Florida, the statute says that the court shall order that parental responsibility be shared unless the court finds that shared parental responsibility to be detrimental to the child. So that’s the standard where it starts.

Matthew Brickman (02:14):
Well, what that means is that means that moms and dads are on equal footing. They are two equal 50 50 CEOs of the company Child, Inc. That means that all decisions are run between the two parents. Nobody has 51% control of the company. It’s equal, say, equal decision making. Now, what happens if the parents are not able to make a decision jointly? Well then that’s what the court is there for. But, you know, in, in some cases, maybe it’s shared with, uh, ultimate or very rare cases, it’s soul, but the standard is shared. So that’s the first part, which is decision making. So moms and dads have equal, say, sitting at the table, having discussions as the CEOs of the company. Then you have time sharing, time sharing simply delegates out of 365 days out of the year, what days out of the year is the mother as the 50% c e o of the company going to go into the office and be responsible to run the company.

Matthew Brickman (03:17):
And what DA days is the father going to go into the company and be responsible to run the company? That’s timesharing. So we used to use words like visitation or custody, but we don’t have those terms in, uh, family law in the state of Florida. In fact, the only people that do get taken into custody and have visitation rights or criminals, not children. Um, so those are the two main components of any time sharing plan when we talk rights and responsibilities of a parent. Um, in another episode, I did talk about the changes in the law, uh, when it comes to the parenting plan, um, where there is now a presumption of 50 50, uh, which is a rebuttable presumption, um, with a low standard, but you have to then hit factors, um, A through T and Chapter 61, go listen to that episode for details.

Matthew Brickman (04:11):
Um, but when it comes to paternity, um, then under chapter 61, each parent has a fundamental obligation to support the minor child. Um, and so we run child support, child support. Um, I talk about it in another episode, but we’ll touch on it here is based off of, uh, income and timesharing. Um, and then as well as, um, some other minor factors. But the two main factors are income and timesharing. The minor factors could be the tax exemption, um, the, uh, tax filing status, childcare, um, medical insurance, mandatory, uh, deductions that are allowable by law, um, other child support or alimony obligations for another case. But mainly it’s, it’s based off of time sharing and child support. So both parents, uh, have a duty to support the child. Now as time sharing and parental responsibility was prior to July 1st, 2023, um, in a paternity action, there was a legal presumption that the mother is the mother of the child because she gave birth to the child.

Matthew Brickman (05:24):
But there is no presumption that the father is the father. Um, and under the current law, the court sets a time sharing schedule when the parties are unable to agree. Um, and then in establishing the time sharing, the court does consider the best interest of the child, um, which goes through, um, a through T and the law. So timesharing and parental responsibility. Remember, there is a change as of July 1st, 2023 that says that it is public policy of this state that each minor child has frequent and continuing contact with both parents after the parents, uh, separate or the marriage of the parties is dissolved, and to encourage the parents to share the rights, responsibilities and joys of child reign. And there is now a rebuttable presumption of 50 50. Um, so when it comes to establishing paternity, what if mom and dad were never married and a child was born out of wedlock?

Matthew Brickman (06:20):
Like I said, pursuant to chapter 7 42, which, um, um, the paternity could be established for a child born to an unmarried mother in multiple ways. So how could that be done? That could be done, uh, through a, through a, uh, voluntary acknowledgement. So the mother says, yes, this is the father, and, um, there’s a voluntary acknowledgement. It could be, um, an adjudicatory adjudicatory, uh, adjudicatory hearing, um, where the father is adjudicated the legal, uh, father of the child, um, or it could be done by the Department of revenue. Additionally, paternity could be established by the court in a response to a petition to establish paternity and shared parental responsibility. So, you know, all the decision making and that equal c e o that I had just, uh, talked about, shared parental responsibility under chapter 61 did not apply until an order adjudicating paternity was entered.

Matthew Brickman (07:27):
So it could, again, it could be established by a hearing, an acknowledgement or department of revenue, but then shared parental responsibility doesn’t kick in until, uh, an order adjudicating the father is entered. And without a court order specifically establishing a timesharing schedule and parental responsibility, then the father was left without defined rights relating to, uh, the relationship with his child. Or, um, so if the paternity had been raised and determined as a matter of law in a, uh, adjudicatory hearing, then um, then that would also establish paternity of the father. And when established, when the paternity is established, um, through an adjudicatory hearing, the court is not required to then set up a parental responsibility and timesharing schedule. A lot of times I’m aware that then I’m aware of that because the parties get ordered to mediation to come and as and deal with a parenting plan where we establish parental responsibility and timesharing.

Matthew Brickman (08:35):
Um, so then paternity could also, this was previously it could also be established by an agreement of the party, right? So we had talked about that, that it’s a voluntary agreement. So both parents may agree to sign an affidavit voluntarily acknowledging paternity under oath in the presence of a notary or under oath in, um, well actually under oath in the presence of a notary or under oath in the presence of two witnesses. Um, and so under this scenario, um, there’s a rebuttable presumption of paternity established and 60 day revocation per period is then triggered, um, after the 60 day period assigned voluntary acknowledgement of paternity constitutes an establishment of paternity and then may only be challenged in a court on the basis of fraud, duress, or if there was a material mistake of fact. Um, department of revenue we talked about was another way. So if, uh, there’s not an acknowledgement or affidavit, then paternity may be established by the Department of Revenue, um, pursuant to Florida statute 4 0 9 0.256.

Matthew Brickman (09:46):
Um, and then of course, as I had stated before then a court order. So, uh, Florida section 7 4 2 0.011 per permits. Any woman who is pregnant or has a child, any man who has a reason to believe that he is the father of a child or any child to pre to bring proceedings in court to determine the paternity of the child when paternity has not been established by law or otherwise. And so the mother of a child born out of wedlock was the natural guardian of the child and was entitled to primary residential care and custody unless a court order of competent jurisdiction enters an order stating otherwise.

Matthew Brickman (10:31):
So how does that change now? Well, the effects of the new bill, this amends section 7 4 2 0.011, and it clarifies that after the birth of a child, a parent may request a determination of parental responsibility and child support for the creation of a parenting plan and timesharing schedule that is pursuant to Florida Statute 61. So that talks about, then we go to chapter 61, and that is, uh, then a rebuttable presumption of 50 50 timesharing and shared parental responsibility and decision making. Absent such a determination of parental responsibility and child support, the mother would retain sole parental responsibility in all timesharing, even if the father had acknowledged paternity. Um, so as such, the bill includes language indicating that a parent is able to request a determination of responsibility and time sharing along with their child support determination. This bill also amends, uh, the same, uh, chapter 7 4 2 0.0, uh, one zero to require that an action brought in court to establish paternity must include the determination of parental responsibility and a parenting plan.

Matthew Brickman (11:57):
And it must establish a time sharing schedule as well as child support. So this particular bill would attach specific parental responsibility. So they have to say, is this shared? Is this shared with Ultimate is this soul. They have to deal with parental responsibility and timesharing to the establishment of the paternity for the father, rather than just ordering child support without granting the father any parental responsibility or timesharing with his child. That’s what used to happen. So it used to be that, you know, the mother and father were never married. The mother had a child, the father had a legal obligation for child support, but had no rights or responsibilities when it came to decision making or timesharing. Now it’s all together. It has to deal with parental responsibility, it has to deal with timesharing, and it has to deal with child support. The bill also amended chapter 7 4 4 0.301, which was, uh, which deals under domestic relations for guardianship.

Matthew Brickman (13:04):
And so this is very important because this clarifies that an unwed mother and father who have established paternity, so in one of those ways that we already talked about, they’ve already established paternity and are the natural, um, then, then they are the natural guardians of the child. And as such, both of them are subject to the rights and responsibilities of parents, um, as though they were married and would enjoy those same rights and responsibilities. In the case where the father has not established paternity by court order or through the other provisions that we talked about, the mother would remain the only natural parent and is entitled to then the primary residential care and custody of the child. And then finally, the bill clarified that the Department of Revenue may continue to make administrative determinations of child support pursuant to Florida’s statute 4 0 9. So the main takeaway from this bill is that once, um, one of those ways of establishing paternity are done, then both mom and dad are on a level playing field as the natural guardians of the child. And then under chapter 61, there is a rebuttable presumption of 50 50 timesharing and shared parental responsibility and decision-making, as well as then setting out child support as it should be based off of their incomes and then the timesharing. So some pretty major changes this year when it comes to paternity, and it’ll be interesting to see what happens going forward with these new laws in the state of Florida.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.