Sometimes the relationship between an unmarried mother and Father falls apart before the child is born. In such a case, either parent may be forced to turn to the Courts to determine paternity and child support. Which begs the question: Can a party file a paternity action before the child is even born?
The Mother
In Florida, the Statute is crystal clear on when a Mother may file an action in the Circuit Court to determine if who she believes is the Dad of her child is really the Dad of her child. A "Paternity Action" under CH. 742 Florida Statues may be filed by the Mother both before the Child is born (while pregant) and after the Child is born. Meaning, an expecting Mother may file an action against possible Dad at any time.
The Father
Florida is also crystal clear that a possible Dad may file an action in Court at any time after the child is born.
However, it is not clear whether Dad has the ability to file an action before the child is born.
First question: Uniform Child Custody Determination
First, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) tells us we need to bring the action in the Child's Home State.
The UCCJEA defines "child" as an individual who has not reached 18 years of age. The UCCJEA only applies to a child or children. This is the act that sets out the home state jurisdiction for a Paternity action. The UCCJEA then seems to suggest that it cannot apply to an unborn child, unless an "individual" can be an unborn child.
Second Question: What does the Florida Paternity Statute Say?
The key word is "child" in the statute as well, and the statute does not address whether a fetus constitutes a child.
742.11 states affirmatively that a mother can bring an action when a child is in utero but it is silent as to whether a Dad can bring an action while in utero. However, the Statute explicitly states a Mother can bring an action while the child is in utero. Therefore, one would think Dad is barred until the child is born.
But this interpretation may very well raise constitutional concerns. Specifically, that the Statute violates the Equal protection clause of the US and Florida Constitutions. This argument is a fundamental fairness argument.
Accordingly, there is no clear cut answer. In an ideal world, the possible Father could just wait until the child is born and address the issue then. But what if Mom decides to leave and "go home" to another State where her family resides right before child birth. in that case, the Father may very well lose jurisdiction in Florida, and then would be forced to file in another foreign jurisdiction. In such a case, the Father may have been wise giving it a shot in Florida Court. The Father's worst case scenario would merely be a dismissal of the action.
However, if that fails and she does wish to flee the State, there is no harm in filing in your home State prior to the birth of the child. She may consent to the jurisdiction, or file a counter petition in Florida that would certainly clear up any jurisdictional issues. The worst that can happen is that the Court dismisses your case.
ABOUT THE AUTHOR: Chris Denmon
A Tampa, Florida Divorce and Family Law Attorney. AVVO rated "Excellent".
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