This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0775z1.DOCX
DATE: 6/12/2023
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/CS/HB 775 Shared Parental Responsibility after Establishment of Paternity
SPONSOR(S): Judiciary Committee and Civil Justice Subcommittee, Benjamin and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1146
FINAL HOUSE FLOOR ACTION: 114 Y’s
0 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/CS/HB 775 passed the House on April 26, 2023, and subsequently passed the Senate on April 27, 2023.
Under Florida law, paternity may be established for a child born to an unmarried mother in multiple ways,
whether by adjudicatory hearing, by voluntary acknowledgement, or by the Department of Revenue.
Additionally, paternity may be established by court order in response to a Petition to Establish Paternity.
However, without a court order specifically establishing a timesharing schedule and parental responsibility, an
alleged father may be left without defined rights relating to his relationship with the child.
Currently, under s. 744.301, F.S., 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 unless a court enters an order stating otherwise. As
such, an alleged father must first establish paternity before being able to petition a court to determine parental
responsibility and timesharing. This may leave an unmarried alleged father without any right to parent the child,
even if both parents acknowledge the alleged father is the actual father and that he has established paternity.
Further, shared parental responsibility does not apply until a court order is entered providing for shared
parental responsibility.
The bill clarifies that, after the birth of a child, a parent may request a determination of parental responsibility
and child support and for the creation of a parenting plan and timesharing schedule pursuant to ch. 61. The bill
also requires that in an action to establish paternity, the court must also determine parental responsibility and a
parenting plan, and establish a timesharing schedule in addition to an order determining a child support
obligation.
The bill also clarifies that an unwed mother and a father who has established paternity are the natural
guardians of a child and, as such, have the rights and responsibilities associated with raising a child. The bill
also clarifies that DOR may continue to establish child support by administrative order.
The bill was approved by the Governor on June 9, 2023, ch.2023-209, L.O.F., and will become effective on
July 1, 2023.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
Rights and Responsibilities of a Parent
In a dissolution of marriage proceeding with children or in a paternity case, issues of parenting must be
worked out between the parties. Florida courts have consistently ruled that a parent’s desire and right
to the companionship, care, custody, and management of his or her children is an important interest
that warrants deference and, absent a powerful countervailing interest, protection. Further, a parent has
general responsibilities owed to his or her children, including supervision, health and safety, education,
care, and protection. In Florida, parenting is broken down into two distinct components: parental
responsibility (decision-making) and timesharing (physical visitation with the child based on a parenting
plan).
Under current law, issues related to timesharing and parental responsibility do not have to be
addressed in a final judgment of paternity; a court is only required to address child support in such a
paternity action.
1
Child Support
Under s. 61.29, F.S., each parent has a fundamental obligation to support his or her minor or legally
dependent child. A court must order either or both parents owing a duty of support to the child to pay
support pursuant to s. 61.30, F.S. A parent’s child support obligation is calculated based on the child
support guidelines established in s. 61.30, F.S. These guidelines use a mathematical formula to
develop the basic child support obligation of each parent. The court may not deviate from the basic
child support obligation provided under the guidelines by more than five percent when establishing the
child support award except in very limited circumstances, such as when the court orders substantial
time-sharing.
Timesharing and Parental Responsibility
Section 61.13, F.S., provides guidelines to assist courts in determining matters related to parenting
2
and time-sharing
3
of minor children in actions under ch. 61, F.S., in accordance with the best interests
of the child while balancing the rights of parents. As a threshold consideration, the Legislature has
declared that:
It is the public policy of this state that each minor child has frequent and continuing
contact with both parents after the parents separate or the marriage of the parties is
dissolved and to encourage parents to share the rights and responsibilities, and joys,
of childrearing.
4
Under current law, the court sets a time-sharing schedule when the parties are unable to agree. In
establishing time-sharing, the court must consider the best interests of the child
5
and evaluate all
factors affecting the welfare and interests of the child and the circumstances of the family, including, but
not limited to the:
1
S. 742.031(1), F.S.
2
Parenting or parental responsibility refers to the responsibility and right to make important decisions about the child’s welfare, such as
education and medical care after the parents separate.
3
Time-sharing refers to the time, including overnights and holidays, which the child spends with each parent. S. 61.046(23), F.S.
4
S. 61.13(2)(c)1., F.S.
5
S. 61.13(2)(c), F.S.
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Demonstrated capacity and disposition of each parent to facilitate and encourage a continuing
parent-child relationship, honor the time-sharing schedule, and accommodate necessary
changes.
Anticipated division of parental responsibilities after the litigation, including the extent to which
parental responsibilities will be delegated to third parties.
Demonstrated capacity and disposition of each parent to determine, consider, and act upon the
needs of the child.
Length of time the child has lived in a stable environment and the desirability of maintaining
continuity.
Geographic viability of the parenting plan, with special attention paid to the needs of school-age
children and the amount of time to be spent traveling to effectuate the parenting plan.
Mental health, physical health, and moral fitness of the parents.
Home, school, and community record of the child.
Reasonable preference of the child.
Demonstrated knowledge, capacity, and disposition of each parent to be informed of the
circumstances of the minor child, including the child’s friends, teachers, and daily activities.
Demonstrated capacity and disposition of each parent to:
o Provide a consistent routine; and
o Communicate with and keep the other parent informed of issues and activities regarding
the minor child, and the willingness of each parent to adopt a unified front on all major
issues when dealing with the child.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child
neglect, or that either parent has ever knowingly provided false information about such matters.
Particular parenting tasks customarily performed by each parent, including the extent to which
parenting responsibilities were undertaken by third parties.
Demonstrated capacity and disposition of each parent to participate and be involved in the
child’s school and extracurricular activities.
Demonstrated capacity and disposition of each parent to maintain an environment for the child
which is free from substance abuse.
Capacity and disposition of each parent to protect the child from the ongoing litigation regarding
child custody.
Developmental stages and needs of the child and the demonstrated capacity and disposition of
each parent to meet the child’s developmental needs.
A court may prescribe a “parenting plan”
6
by which the parents are ordered to share decision-making
and physical custody of the minor child. The parenting plan may order parents to exercise shared
parental responsibility, it may delegate decision-making authority over specific matters to one parent, or
it may grant a parent sole parental responsibility over the minor child. Common issues concerning a
minor child may include education, healthcare, and social or emotional wellbeing.
Establishment of Paternity
Pursuant to chapter 742, F.S., paternity may be established for a child born to an unmarried mother in
multiple ways. Paternity may be established by adjudicatory hearing, by voluntary acknowledgement, or
by the Department of Revenue.
7
Additionally, paternity may be established by court order in response
to a Petition to Establish Paternity. Shared parental responsibility under ch. 61, F.S., does not apply
until an order adjudicating paternity is entered. Without a court order specifically establishing a
timesharing schedule and parental responsibility, an alleged father may be left without defined rights
relating to his relationship with the child.
6
A “parenting plan” is a document created to govern the relationship between the parents relating to decisions which must be made
regarding the child and must contain a timesharing schedule for the parents and child. S. 61.046(14), F.S. If a parenting plan is agreed
to by the parties, it must be approved by the court.
7
A request for timesharing or visitation may not be filed in a DOR action for paternity. See s. 409.2564, F.S.
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Adjudicatory Hearing
If paternity has been raised and determined as a matter of law within an adjudicatory hearing brought
under the statutes governing inheritance, or dependency under workers’ compensation or a similar
compensation program, such adjudication establishes the paternity of the father.
8
When paternity is
established through an adjudicatory hearing, the court is not required to establish parental
responsibilities or a timesharing schedule.
Affidavit or Voluntary Acknowledgment
Paternity may also be established by agreement. Both parents may agree and sign an affidavit of
voluntary acknowledgement of paternity under oath in the presence of a notary or under oath in the
presence of two witnesses.
9
Under this scenario, a rebuttable presumption of paternity is established
and a sixty-day revocation period is triggered. During the sixty-day revocation period, either the mother
or the alleged father may rescind the acknowledgement of paternity.
10
After the sixty day period, a
signed voluntary acknowledgement of paternity constitutes an establishment of paternity and may only
be challenged in court on the basis of fraud, duress, or material mistake of fact.
11
Alternatively,
paternity may be established by both parents executing an affidavit of paternity or a stipulation of
paternity and filing it with the clerk of court.
12
If both parents sign the affidavit or stipulation of paternity
and file it with the clerk of court, paternity is deemed to be established at the time the affidavit is filed.
Department of Revenue
If no acknowledgement or affidavit is completed, paternity may be established by the Department of
Revenue pursuant to s. 409.256, F.S. The Department of Revenue (DOR) may commence a paternity
proceeding or a paternity and child support proceeding if:
Paternity has not otherwise been established;
No one is named as the father on the child’s birth certificate or the person named as the father
is the putative father named in an affidavit;
The mother was unmarried at the time of the child’s conception and birth; or
DOR is providing services under Title IV-D.
13
DOR also has the statutory authority under s. 409.2563, F.S., to commence an administrative
proceeding to establish child support obligations.
14
Court Order
Section 742.011, F.S., permits any woman who is pregnant or has a child, any man who has reason to
believe that he is the father of a child, or any child, to bring proceedings in court to determine the
paternity of the child when paternity has not been established by law or otherwise. Section 742.031,
F.S., requires the court to conduct a hearing on the complaint and establish paternity if the court finds
the alleged father is the father of the child. Upon a determination of paternity, the court must decide on
the ability of the parents to support the child.
15
In a matter brought under ch. 742, F.S., the court is not
required to decide on an appropriate parenting plan or time-sharing schedule.
16
This could effectively
result in paternity being established for the father and a child support order issued without providing a
specific timesharing schedule with the child.
8
S. 742.10, F.S.
9
Id.
10
S. 742.10(1), F.S.
11
S. 742.10(4), F.S.
12
S. 742.10(1), F.S.
13
S. 409.256(2), F.S.
14
S. 409.2563, F.S.
15
S. 742.031(1), F.S.
16
Id.
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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 unless a court order of competent jurisdiction enters an order stating
otherwise.
17
If an order establishing paternity only includes a child support award and does not provide
a parenting plan or timesharing schedule, the parent receiving the child support (obligee) is deemed to
have all of the timesharing and sole parental responsibility without prejudice to the other parent
(obligor).
18
Similarly, if a paternity judgment makes no child support award and does not provide a
parenting plan, the mother is presumed to have all of the timesharing over the child as well as sole
parental responsibility. As such, an order simply establishing paternity and nothing more, may leave the
father with no decision-making authority over the child and no timesharing.
Effect of the Bill
The bill amends s. 742.011, F.S., to clarify 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 pursuant to ch. 61. Absent such a determination of parental responsibility and
child support, the mother would retain sole parental responsibility and all of the timesharing, even if the
father had acknowledged paternity. As such, the bill includes language indicating a parent is able to
request a determination of parental responsibility and timesharing in conjunction with a support
determination.
The bill also amends s. 742.10, F.S., to require that an action brought in court to establish paternity
must include the determination of parental responsibility and a parenting plan, and must establish a
timesharing schedule and child support. The bill would attach specific parental responsibility and
timesharing to the establishment of paternity for a father, rather than just ordering a child support
obligation without granting the father any parental responsibility or timesharing of his child.
The bill amends s. 744.301, F.S., to clarify that an unwed mother and a father who has established
paternity are the natural guardians of the child. As such, they are subject to the rights and
responsibilities of parents that a married parent would enjoy. In the case where a father has not
established paternity by court order or through the provisions under s. 742.10(1), F.S., the mother
remains the only natural parent and is entitled to primary residential care and custody of the child.
The bill also clarifies that DOR may continue to make administrative determinations of child support
pursuant to s. 409.2563, F.S.
The bill was approved by the Governor on June 9, 2023, ch.2023-209, L.O.F., and will become effective
on July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
17
S. 744.301(1), F.S.
18
S. 742.031(2), F.S.
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2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.