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If Two Parents Are Unmarried, Can One Leave the State with Their Child, On Their Own?


As attorneys who provide comprehensive family law services to individuals and families throughout Orlando, Winter Park, and surrounding areas, we frequently not only counsel clients who know for sure that they are interested in obtaining assistance with drafting a prenuptial agreement, or in obtaining a divorce, but also those who may be seeking advice on what their rights are in case of a hypothetical situation; for example, what they should do if they are unmarried and share a child with their partner, but are concerned that their partner might at some point try to leave with the child; or if they have concerns about domestic violence and want to know what their rights are with respect to leaving with their child, etc.

If Domestic Violence Is Involved

First and foremost, if child abuse or domestic violence is involved, both are serious crimes that are treated very seriously in Florida. Victims of abuse or violence need to seek help immediately from an attorney, who can help them file for a protective order. Doing so helps to restrain the offender from harming the victim and also places the police on notice of the situation as to why they may be fleeing without first providing notice.

The Law in Florida: Without Paternity Established, The Child’s Mother Has All Legal Rights

It might surprise most to learn that, in Florida (as in most other states), if two parents are unmarried, a father has no rights over their biological child unless they officially establish paternity, even if their name is on the birth certificate. This means that, by default, the child’s biological mother has all of the legal and physical custody rights over the child until paternity is established by the court. Once that it is, then the father can partake in those legal rights. It is the exact opposite for a married couple, where the husband is presumed to be the biological father of any child born during the marriage, and has all of the same custody rights as the mother upon the child’s birth.

As a result, it behooves unmarried fathers to ensure that they work with an attorney to establish paternity as soon as possible when their child is born in order to secure their rights to the child. If two parents have never been married, there is no custody order from the court or active case pending, the father’s paternity has not been established, and the child is not being concealed from the other parent, it is entirely possible that the child’s mother can leave and take their child with her, as she does not technically need the court or father’s permission to do so.

Still, working with an Attorney Instead of Fleeing Is Advised

However, fathers can file paternity cases at any time, and once the case has been filed, in most Florida counties, the mother is prohibited from removing the child from the state once she has been served, without an order from the court or the written permission from the father.  If the mother does ask for permission, in a pending case, the court will need to make a determination regarding what is in the best interests of the child.

In addition, the Uniform Child Custody Jurisdiction and Enforcement Act (which Florida adopted) dictates that the home state of the child – i.e. the state of the child within six months before the proceedings were initiated, even if the child is currently absent from the state – can make an initial custody ruling. This means that, if the mother has moved away, the court can order the child to be brought back to Florida.

Contact Our Florida Family Law Attorneys to Set Up a Consultation & Find Out More

All of these cases can become very complicated, which necessitates speaking with an experienced family law attorney, regardless of your circumstances, as soon as possible. Planning ahead for any circumstance that may come up, and knowing your rights, can make all the difference in the world. Contact one of our compassionate Orlando family attorneys at Greater Orlando Family Law today to schedule an initial consultation and find out how we can help ease your mind.




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