If if you have children outside of marriage in Florida, you should get a court approved Parenting Plan. Or risk not being able to see your child until a court figures things out. This is true even if you are the named father on the birth certificate. A recent case out of Florida’s 5th District Court of Appeals make it clear why you need a Parenting Plan.
Obviously, if you are not legally a child’s parent, you cannot simply drive off with the child. (Think Amber alert). However, what happens if you are on the child’s birth certificate, and have a dispute with the other parent.
These facts played out in a recently decided case out of Florida’s 5th District Court of Appeals (5th DCA). Nelson v. Mirra, Case No. 5D21-2469. In the case, the father was on the child’s birth certificate, and allegedly withheld the child from the child’s mother. (Whether this actually happened was not determined by the appellate court and is not the point of this article).
The child’s mother then asked the trial court to issue an emergency pickup order for the child. The mother’s reasoning was that because there was no custody order, the father had no legal right to keep the child. (In Florida a court approved Parenting Plan is a custody order). The trial court refused to enter an emergency pickup order, and instead invited either party to file a petition to establish time-sharing. As to each parent’s custodial rights, the trial court determined that because the father “is on the child’s birth certificate and therefore the child’s legal father. [Father] has an equal right to custody of the child as [Mother].”
The 5th DCA reversed the trial court’s reasoning on the issue of custody. Specifically, the 5th DCA found that the trial court had mixed up the issues of paternity and custody. In this instance the court assumed the father’s paternity was established because he had executed an acknowledgement of paternity, and the deadline to rescind the acknowledgement had passed. (One way to get on a child’s birth certificate is for both parents to jointly execute an Acknowledgement of Paternity). However, the 5th DCA ruled that “custody” in such cases is not established by simply being on the birth certificate (“paternity”). Instead, custody was determined under Section 744.301(1), Florida Statutes, which states:
The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
Conclusions
If you are a father on a birth certificate you still need a Parenting Plan. Without such a court approved Parenting Plan the mother has primary custody of child under Section 744.301(1), Florida Statues.
If you are the natural mother of a child you need a Parenting Plan, because without a court order Parenting Plan, the police, the child’s school, or a trial judge could simply “get it wrong” when it comes to each parents rights in regard to the child.
As a mediator and collaborative family law attorney, I believe that parents can reduce or avoid conflict in the future, by negotiating the terms of a Parenting Plan before disputes arise.
