When is the Father Not the Father

Robert Bogen • March 29, 2022

Most people don't realize that a father has different rights depending on whether or not he is married to the mother. Merely being on the birth certificate of a child born out-of-wedlock does not grant the father custody or visitation rights like he would otherwise have if he were married to the mother.



In a recent Florida case, the parties, who were unmarried, had a 20 month old daughter. The father, who was on the birth certificate, had taken the child to New Jersey and withheld the child from her mother for over a month. The mother sought a child pick-up order stating that although the father was on the birth certificate, they were not married and the father's paternity had not yet been established by a court. The lower court judge denied the mother's request for pick-up order, stating that since the father was on the birth certificate he was the child's legal father and had an equal right to legal custody of the child as the mother.


However, on appeal, the appellate court reversed and stated that although the father was the child's legal father, that status alone was not sufficient to grant him custody or visitation. On the contrary, Florida law grants primary residential care and custody of a child born out of wedlock to the mother unless there is a court order stating otherwise. The father's paternity status did not afford him custody or visitation rights unless and until a court order established those rights for him after a hearing with the presentation of evidence. Thus, the lower court judge's declaration that the father and the mother had equal custody rights over the child was in error. 

Two people standing on a beach, one with hands clasped behind their back and the other touching their shoulder.
November 3, 2026
Can adultery affect a Boca Raton divorce? Learn how Florida law addresses alimony, marital spending, and parenting. Contact Robert L. Bogen’s office.
Two children with backpacks crossing a street at a crosswalk, seen from behind.
October 26, 2026
Can your ex change your child’s school in Boca Raton? Learn how Florida parenting plans affect school decisions and what to do before a transfer.
Two people embracing in a hallway, one in a black sweater and blue jeans, the other in a cream coat.
September 21, 2026
Learn what happens to a 401(k) during a Florida divorce, including equitable distribution and retirement asset division. Contact Law Offices of Robert L. Bogen in Boca Raton.
Two people seated on a couch in an office, one speaking and gesturing while the other listens with a bag beside her.
August 19, 2026
Learn how to prepare financially before filing for divorce in Florida. Law Offices of Robert L. Bogen assists Boca Raton residents with divorce and family law matters.
Black-and-tan dog staring ahead behind a chain-link fence outdoors
July 21, 2026
Learn what happens to pets during a divorce in Florida, how courts determine ownership, and how Law Offices of Robert L. Bogen assists clients in Boca Raton with divorce matters involving family pets.
Child sitting in shallow ocean water at a bright beach, wearing a colorful swimsuit.
June 27, 2026
Learn how Florida courts handle vacation and holiday scheduling disputes between co-parents. Law Offices of Robert L. Bogen assists families in Boca Raton with parenting plans, time-sharing disputes, and custody modifications.
Two people holding hands on a beach, with the ocean in the background
May 19, 2026
Can child support orders be enforced across state lines? Law Offices of Robert L. Bogen helps Boca Raton families with interstate child support enforcement and modification matters.
Snowy neoclassical building facade with tall columns and a lit entrance at the top of steps
April 20, 2026
Learn what contempt of court means in a family law case, common examples, and potential consequences. Serving Boca Raton clients with family law guidance.
Rows of U.S. twenty-dollar bills, arranged in a flat, overlapping pattern.
March 5, 2026
Learn when and how alimony can be modified in Florida, including the legal requirements and process for requesting changes to spousal support orders.
Two young girls in white dresses smile, barefoot, standing outdoors with a tree in the background.
February 19, 2026
Can siblings be separated in a Florida custody case? Learn how courts in Florida decide time-sharing issues and how the Law Offices of Robert L. Bogen assists Boca Raton families with child custody matters.