What’s in A Name? How to Amend A Birth Certificate to Remove a Named Father.

What’s in a name? How to Amend A Birth Certificate to Remove a Named Father.

Just imagine: a mother gives birth. She is unmarried, but the name of the child’s father is listed on the birth certificate. What happens if the father has no involvement in the child’s life? Further, as opposed to seeking child support, the biological mother is instead focused on removing the father from the child’s birth certificate.  What can she do?

Aside from addressing typographical errors, there is not an “amendment” process for changing the father’s name. Though the Department of Health, Office of Vital Statistics, accepts Form 429, titled Application for Amendment to Florida Birth Record, a court order is required to amend a “parent name”. This is consistent with Section 382.106, Florida Statutes, which provides in pertinent part that “If a father’s name is listed on the birth certificate, the birth certificate may only be amended to remove the father’s name or to add a different father’s name upon court order.” The question then becomes, what “type” of court order? An Order Determining Paternity? An Order Disestablishing Paternity?

Many individuals are familiar with a Petition to Determine Paternity. Such an action is brought by a birth mother or father to ask the court to establish paternity, a timesharing schedule and/or child support for a minor child or children. The action seeks to legally establish who is the father of the child/children. However, in our example, the biological mother is not seeking to have an alternate man named as the father, and further, is not seeking child support; the Paternity action would therefore not provide the relief requested.

Likewise, the cause of action known as a Disestablishment of Paternity would not aid the mother. In an action to disestablish paternity, a father can challenge a child support order as well as the underlying conclusion that he is the legal father of a child. However, such an action, brought pursuant to s. 742.18, is the process by which “a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.” (emphasis added). Resultantly, it would not be an available mechanism for a biological mother seeking to disestablish the paternity of the named father.

Rather than seeking to establish or disestablish paternity, the mother should seek to challenge the voluntary acknowledgement of paternity. Specifically, if a father’s name appears on a birth certificate, it is assumed that the applicable hospital complied with s. 382.013(2), which includes obtaining an affidavit or a voluntary acknowledgement of paternity from the father and the mother. If neither the father nor mother seek to rescind the voluntary acknowledgement of paternity within 60 days, there is a presumption that the father is the child’s legal father. Pursuant to s. 742.10(4), after the 60-day period …  a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger. Generally, fraud is defined as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Duress involves pressure exerted upon a person to coerce that person to perform an act they ordinarily would not perform, and a material mistake of fact must be “a mistake” that is substantial and fundamental to the nature of the voluntary acknowledgement. No bright line rules exist, but if both parties to the voluntary acknowledgement knew the named father was not the biological father at the time of execution, it is unlikely that a court will find fraud as the mother would be complicit in said fraud. Though the mother has the ability to request the relief, it is a challenging road.

Family issues are never easy, especially those involving minor children and the intricacies of parental relationships. If you’re struggling with similar issues, please contact our south Florida family law attorney, Aislynn Thomas-McDonald, for advice.

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