A potential client approached us with a unique problem. He was the unmarried father of three young children. There was no order of paternity for any of the children, and the mother had fled the State of Florida because she had multiple felony warrants for her arrest. She was believed to be somewhere in Michigan. He was unable to consent to medical treatment for the children because he was not legally their father (yet).

There is a procedure available for serving absent parties who cannot be located. It is called substitute service. Prior to utilizing substitute service one must conduct a diligent search to find the absent party and file an affidavit of diligent search detailing their efforts to find the absent party. I advised the client that we should hire a private investigator to conduct a diligent search for the absent mother and file the appropriate affidavit. We would then be able to serve her by what is called substitute service, either by publication in a local newspaper or by posting at the county courthouse.

I then reviewed the substitute service statute to confirm the details of how to proceed. I was immediately shocked to see that the statute did not allow for substitute service against an unwed mother in a paternity case. Substitute service was only allowed against the alleged father in such a case. The only available remedy was to file a motion, alleging that the statute in question was unconstitutional as applied to my client because it effectively denied him the ability to sue the mother at all because she was in hiding and could not be found.

Ultimately the motion was granted; the trial court found the statute to be unconstitutional as applied to my client on both due process and equal protection grounds. My client was allowed to proceed with substitute service, and we obtained a judgment of paternity. I remained concerned about the glaring loophole in the statute, so I took the issue to a subcommittee of the Florida Bar, Family Law Section. We drafted a proposed revision to the statute and went looking for a State Senator or Representative to sponsor it. This literally took years. Finally, in 2022 a bill passed the Florida Legislature amending the substitute service statute to allow for substitute service on the unwed mother in a paternity case.

This case demonstrates several important points. For one, statutes are often based on antiquated attitudes and social norms; in this case, the tacit assumption that only unwed fathers abandon their children; therefore there would be no need to serve an absent mother with substitute service because “everyone knows” that mothers don’t abandon their children. Wrong. Second, these antiquated attitudes and norms can be corrected through legislation. Third, as members of the Bar we have a unique opportunity to attempt to correct faulty statutes through political action. Fourth, the political process is painfully slow, especially when the action to be taken is so painfully obvious.