Family Complex Litigation & Collaborative Group (“FCLC Group”)  is devoted to the resolution of high-stake, complex marital and family law cases on behalf of clients in Orlando, Florida, including matters involving questions of paternity. 

Establishing or challenging paternity and parentage rights in Florida is a significant determination for parents that will affect children for the rest of their lives. At FCLC Group, we understand the seriousness of paternity issues and strive to ensure that our clients understand their rights and responsibilities.

Florida Paternity Statute

The paternity statute for Florida is found in Chapter 742 of the Florida Statutes. This statute deals with the establishment and disestablishment of parental rights and responsibilities for children born out of wedlock. Currently, the statute has a gap for matters involving a “quasi-marital child,” who is a child born during an intact marriage, but the biological father is not the mother’s husband. In other words, a quasi-marital child is born during wedlock; however, the child’s biological father is not the married mother’s husband. 

The statutory gap was identified by the Florida Supreme Court in Simmonds v. Perkins, 247 So.3d 397, 403.n.8 (Fla. 2018). In such matters, the common law has created a rebuttable presumption that the mother’s husband is the child’s legal father. See Simmonds v. Perkins, 247 So.3d at 400; Kendrick v. Everheart, 390 So.2d 53 (Fla. 1980); Fernandez v. McKenney, 776 So.2d 1118 (Fla. 5th DCA 2001). This presumption has led to many disputed cases between the biological father and the “legal” father involving parental rights and responsibilities. And, these cases proceed in somewhat of a rudderless fashion through a judicial system that has been given no legislative guidance. 

Indeed, as was observed by the 1st DCA in 2010, “Cases involving children are never easy, and cases involving ‘quasi-marital children’ are particularly complicated because they ‘present major public policy issues that are difficult, if not impossible, to address with the case law method.” Nevitt v. Bonomo, 53 So.3d 1078, 1084 (Fla. 1st DCA 2010). 

Before then, in a well-reasoned concurring decision, Judge Winifred Sharp of the 5th DCA wrote: “I have sympathy for trial judges in such cases because the ‘law’ is not clear.” As Judge Altenbernd [of the 2nd DCA] has cogently observed, the advent of genetically accurate testing for paternity has partially ‘broken the back’ of the common law presumption [that the husband is the father] for children born while a mother and her husband are married.” Fernandez v. McKenney, 776 So.2d at 1119. 

More recently, the 2nd DCA directly addressed the need for legislative action when it stated, in pertinent part, “…because similar circumstances could arise in other cases, the legislature may choose to re-address the issue of a biological father’s right to establish paternity where the child is conceived and born during an intact marriage to another man.” C.G. v. J.R. and J.R., 130 So.3d 776, 782 (Fla. 2d DCA 2014). 

Finally, in its 2018 decision in Simmonds v. Perkins, the Florida Supreme Court made the following express holding:

  1. Father may rebut the presumption of legitimacy when he has manifested a substantial and continuing concern for the welfare of the child. Citing Kendrick v. Everheart, 390 So.2d 53, 61 (Fla. 1980).
  2. The presumption is overcome when there is clear and convincing reason based primarily on the best interests of the child. Citing DHR v. Privette, 617 So.2d 305, 309 (Fla. 1993).

The Florida Supreme Court in Simmonds v. Perkins also removed the following roadblocks to moving forward to address the parentage rights of a biological father, to wit:

  1. Under Florida Supreme Court precedent, a biological father’s standing is to be decided under Kendrick not some objection by the mother and her husband. So, goodbye to the Slowinsky case (1st DCA 2011) and similar cases.
  2. The Supreme Court’s previous language in Privette, stating that the presumption cannot be overcome unless common sense and reason are “outraged” by its application, is not helpful or necessary. Instead, the test is that the presumption is overcome when there is a clear and compelling reason based primarily on the child’s best interest.
  3. The Court noted that in the case of Daniel v. Daniel, 695 So.2d 1253, 1255 (Fla. 1997), it was indicated that the Privette test does not apply when the child does not face the threat of being declared “illegitimate” and when the legal father is not seeking to maintain his rights. This is not correct because, under Daniel, a child born into a marriage can never be deemed illegitimate. So, when does the Privette test apply?: when both the biological father and the husband assert their respective rights.
  4. The Supreme Court expressly found that the Bio Dad need not prove that the legal dad has somehow been remiss in his obligations as a father. While such evidence is relevant, it is not dispositive. See Footnote 7 of Simmonds.

Also, when it comes to the need for legislative action, please read Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla.St.U. Law Review 219 (Winter 1997) (the title says it all).

Contact an Experienced Paternity Attorney in Orlando, Florida

Whether a man may be recognized as a father to a child in Florida is often unrelated to issues of biology and genetics. It will typically depend on the reason for the establishment of paternity. At FCLC Group, we are experienced and skilled in all paternity matters. If you have questions about parental rights following divorce or paternity in general, contact us. We are committed to resolving your case.