Posted by Nydia Streets of Streets Law in Florida Child Custody
Does a father of a child born outside of wedlock have custody rights? When an unwed father signs an acknowledgement of paternity to be named as the father on a birth certificate, it creates a presumption that he is the legal father of the child in Florida. If neither parent rescinds the acknowledgement or files a judicial action relating to the child within sixty days, the voluntary acknowledgement establishes paternity subject to exceptions. Fla. Stat. § 742.10(4). Does this paternity status give a father a right to obtain custody of a child via a pick-up order? This was an issue in the case Nelson v. Mirra, 5D21-2469 (Fla. 5th DCA March 21, 2022).
In this case, the mother filed a motion for pick-up order, alleging the father was withholding the parties’ 20-month old daughter from her. She alleged that although the father was on the birth certificate, she was not married to him and his paternity had not been established. She asked that the court order that the child be returned to her care. The court denied the motion, holding “[Father] is on the child’s birth certificate and is therefore the child’s legal father. [Father] has an equal right to custody of the child as [Mother].” The mother appealed.
The appellate court held “Father’s paternity alone does not grant him child custody. See § 744.301(1), Fla. Stat. (2021). The Florida Legislature has granted ‘primary residential care and custody’ of a child born out of wedlock to the child’s mother ‘unless the court enters an order stating otherwise.’ Id. § 744.301(1). Custody refers to ‘[t]he care or control of a . . . person . . . for . . . preservation, or security.’ Custody, Black’s Law Dictionary (11th ed. 2019); see also 23 Fla. Prac., Fla. Family Law § 7.6 (June 2021).”
The court concluded “An emergency pick-up order ‘permits a court to obtain the physical presence of a child within the jurisdiction so that it can adjudicate issues of custody or to enforce an already granted right of custody. It is not a vehicle by which an initial determination of custody is made.’ Williams v. Primerano, 973 So. 2d 645, 647 (Fla. 4th DCA 2008). Father’s paternity status did not afford him custody rights when a court order had not yet established them. [. . .] The trial court declared that Father and Mother had equal custody rights over their child. In the absence of a prior court order addressing custody, this was error. See Fla. Stat. § 744.301(1).”
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