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Who’s Your Daddy? Florida Supreme Court Changes the Game for Bio Dads

 

So, gentlemen, you have a little affair, and the little affair leads to a pregnancy of your lady friend. You are delighted because you always wanted to be a father. One glitch….the Mommy Elect is…married.

Up until recently, under Florida law, that little minor inconvenience of the mom’s marriage to another man (not the daddy) spelled almost certain doom for the biological father establishing his parental rights. You see, there is a presumption of legitimacy such that a child born during an intact marriage, is, well, legitimate, which means the husband is the dad in the eyes of the law. That was, of course, unless the husband decided that he really did not want to be the dad of his wife’s illegitimate child, and legal dad (husband) wants to waive his rights to the kid that’s not his to begin with. In those instances, as long as married non-dad chose to (legal term here) disestablish paternity, and bio dad chose to step up to the plate, then life was good, the moon, the stars and the sun aligned, and we lowly family lawyers ended up with two cases- divorce and paternity. Are you following all this?

But in those cases where the married non-bio dad chose to stay married to his cheating wife and wholly embrace the baby his wife was having with another man as “his” child, then bio dad became the persona non grata, or, in this instance, perhaps the “parent non grata.”

That was until….. the Florida Supreme Court’s decision in the case of Simmonds v. Perkins, 43 Fla. L. Weekly S273a.   Yes, in a case that began right here in Broward County, Mr.Perkins, a gentleman in the very situation I described above, attempted to establish paternity. His petition was dismissed, as the Broward Circuit Judge (who is a wonderful jurist and one of the hardest working judges around) who ruled on the case held that, by law, bio dad Perkins had no legal right (standing) to pursue the case based on the precedent established in Johnson v. Ruby, 771 So.2d 1275,1276-76 (Fla. 4th DCA 2000) which held that “ putative father has no right to [seek to] establish paternity of a child who was born into an intact marriage, when the married woman and her husband object.”

Mr. Perkins appealed the decision and the Fourth District Court of Appeal (who hears cases appealed from, among others, Broward cases). relying on the earlier case of Department of Health & Rehabilitative Services v. Privette, 617 So.2d at 309, held that “ biological father may seek to establish his paternity, even when both the mother and husband object, if ‘common sense and reason are outraged’ by applying the marital presumption to bar such an action….”

Because another district court of appeal in Florida ruled differently, the Florida Supreme Court decided to resolve the conflict for the state. In so doing , the Florida Supreme Court held that the presumption of legitimacy must not create an absolute bar to a biological father’s right to seek to establish his paternity when the biological father has “manifested a substantial and continuing concern” for the welfare of the child.   The Florida Supreme court noted, however, that the presumption of legitimacy that exists for the married non-biological dad may be prevail when there is a “clear and compelling reason based primarily on the child’s best interests.”

It should be noted that Mr. Perkins was not aware that Ms. Simmonds was married, and when he became aware, he was advised it was only for “immigration purposes’ (President Trump, are you reading?) and Mr. Perkins actually lived with mom and baby for some time after birth. So clearly, this was a man who truly wanted to be part of his child’s life.

So my thanks for our Florida Supremes rolling with the times.   Yup, there was a time when an “illegitimate” child was stigmatized. But “ the times they are a changing” (to quote a 1964 Bob Dylan song) and who a person becomes in life is far more important than where one came from.

The entire opinion in the case can be found by clicking on the link below. http://www.floridasupremecourt.org/decisions/2018/sc17-1963.pdf

 

Cindy Vova

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