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Legal vs. Biological Father

The first thing that needs to be determined is whether there is more than one "Father." To do that, one must understand how a legal father is created. There is no need to discuss how a biological father is created (since we all know how that happens). A legal father can be created in several ways, the most common being the following:

  1. The mother is married to a man who is not the biological father of the child,
  2. A man who is not the biological father of a child adopts that child, or
  3. The biological father is deemed to be the legal father in a court of law.

Take for example the following set of facts:

John Doe is married to Jane Doe. Jane Doe is having an extramarital relationship with Bob Smith. Jane Doe becomes pregnant with Bob Smith's child. When the baby is born Jane Doe and John Doe are still married.

-In this fact pattern John Doe is the legal father of the minor child and Bob Smith is the biological father of the child.

John Doe is married to Jane Doe. Jane Doe has a child with Bob Smith (a man from a previous relationship). John Doe adopted the minor child (either with the consent of the biological father or after a termination of parental rights).

-In this fact pattern Bob Smith is the biological father and John Doe is the legal father.

Bob Smith has a child with Jane Doe. Bob Smith and Jane Doe are not, and have not been, married. Bob Smith files a Paternity Action and receives an Order of Paternity.

-In this fact pattern Bob Smith is the biological father, but was not the legal father until he received the Court Order of Paternity.

It is important that a father understand the difference between being the biological father and the legal father of a child. That title directly impacts that Father's rights to that child.

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