If your issue is a child born of a married woman and the biological father is not the husband, you are in a peculiar situation which is discussed in detail below:
Daily Mail, January 8, 2017 – Bizarre Florida law which values marriage above parental rights BANS biological dad from rights to his newborn son because his girlfriend was married to someone else when they conceived.
Historically, the birth mother was the only legal parent of a child born out of wedlock and the child was deemed illegitimate. Over time, Florida common law and Florida statutes evolved to permit a putative father to initiate a paternity action to determine and establish his paternity over a child born out of wedlock. Seemingly, a majority of early case law and the statutes consistently only contemplated the paternity of children born out of wedlock. This is likely because statutes involving crimes such as bastardy and adultery otherwise became implicated and persons would not wish to admit to such crimes through the filing of paternity actions. Ultimately, such laws became defunct and case law began to consider paternity actions to children born to intact marriages. Often times such actions involved a husband who wished to disavow a child he learned was not his biological child and a mother who instituted an action for support from the biological father. However, the law has not so evolved to permit a putative father, even a father determined to be a biological father, to sustain a paternity action when a child is born in an intact marriage over the objection of a husband and wife who wish to raise the child as their own.
With regards to paternity, Florida’s early case law strongly maintained two (2) bedrock principals: 1) It is in a child’s best interest to be presumed legitimate. See, e.g., Eldridge v. Eldridge, 16 So. 2d 163 (Fla. 1944); Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976). And, 2) a child cannot have more than one father or more than one mother.
Chapter 742, consistent with the rest of Florida’s relevant statutory law, is drafted so that each child has only one legal mother and one legal father. See Daniels v. Greenfield, 15 So. 3d 908, 911(Fla. 4th DCA 2009) (“‘Florida does not recognize dual fathership.'”)(quoting Achumba v. Neustein, 793 So. 2d 1013, (Fla. 5th DCA 2001)); G.F.C. v. S.G. & D.G., 686 So. 2d 1382, 1386 (Fla. 5th DCA 1997) (“[T]here is no such thing as dual fathership [under Florida law].”). Thus, only one (1) father may have privileges such as timesharing or obligations such as child support pertaining to a minor child.
Of course, there have been exceptions to these principals over time and we expect case law to develop even further now that same-sex marriages are recognized under Florida law.
Florida’s courts desire so strongly to maintain the presumption of legitimacy that the Florida Supreme Court in Department of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 308 (Fla. 1993), pointedly states, “Court after court in the United States has held that the presumption [of legitimacy] and its related policies are so weighty that they can defeat even the claim of a man proven beyond all doubt to be the biological father.”
An interesting case specifically applicable to central Florida is the case of S.B. v. D.H and H.H, 736 So. 2d 766 (Fla. 2d DCA 1999). Therein, a child was born of an intact marriage and a man not the mother’s husband claimed to be the child’s biological father while the mother’s husband desired to be recognized as the child’s legal father. The trial court referred the case to a general master and the general master recommended the case be dismissed and that the husband’s name be placed upon the birth certificate to confirm his status as the legal father responsible for all future paternal obligations. The trial court accepted these recommendations and entered a judgment dismissing the action with prejudice. The Second District Court of Appeal then affirmed the judgment. In affirming the judgment, the Second District Court of Appeal noted that Section 382.013(6)(a), Florida Statutes, provides: “If the mother is married at the time of birth, the name of her husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction.” (Said statute is now found at §382.013(2)(a), F.S.) The Court further stated that the “initial ‘legal father’ of any child of a married woman must be the husband unless a paternity action is resolved prior to the child’s birth. See Department of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla. 1993). [Section 382.013(2)(a), F.S.] recognizes the time-honored presumption of legitimacy. [Citation omitted]”
In S.B. v. D.H and H.H, the Second District Court of Appeal specifically states that a putative biological father cannot maintain an action for paternity for a child conceived by a married woman when both the woman and her husband object. The Court applies a caveat to this rule in stating:
So long as the husband and wife are married and have no pending divorce proceeding, we will not authorize the trial court to conduct any qualitative evaluation of whether the marriage is ‘intact.’ The marital father, by objecting to the paternity action, is estopped from later denying his responsibilities as the child’s legal father. See Wade v. Wade, 536 So. 2d 1158 (Fla. 1st DCA 1988).
(Emphasis added). Id.
The issue of estopping the legal father from later denying the rights and responsibilities pertaining to a minor child is central to whether the action should be dismissed with prejudice. A legal father’s assumption of parental rights at the outset of a legal proceeding means that he cannot decline those rights in a later proceeding. In order for the legal father to assume these rights, he must be included as a necessary party in the instant action. See Privette at footnote 4 (“The legal father must be given notice of the hearing either actually if he is available or constructively if otherwise; and he must be heard if he wishes to argue personally or through counsel.”) Also note that Privette at footnote 5 states, “The child as represented by the guardian ad litem is an indispensable party, since the child’s best interest are the primary issue.…”
In S.B. v. D.H and H.H, the Second District Court of Appeal notes “it is refreshing to see a case in which two men of modest means both wish to undertake the responsibilities of fatherhood,” however, the Court also candidly states:
There is no Solomon within our judiciary who can accurately predict who would be the ‘better’ father for this child. [The husband and wife] have decided to accept all rights and responsibilities of parenthood. [The putative father] has no statutory or constitutional right to intrude into that private decision. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).
Section 742.011, Florida Statutes, “narrowly defines those who can sue to establish paternity, stating ‘any man who has reason to believe that he is the father of a child … may bring proceedings … to determine the paternity of the child.’” G.F.C. v. S.G., 686 So. 2d 1382, 1385 (Fla. 5th DCA 1997). However, Section 742.011, Florida Statutes, “must be read in conjunction with the remainder of Chapter 742, including section 742.10, which states that ‘[t]his chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.’ (Emphasis added).” Id. Furthermore, “section 742.011 provides the paternity action may be brought so long as paternity has not been established by ‘law or otherwise.’” Id. “Paternity would be established ‘by law’ when there has been an adjudication of paternity or by the filing of affidavits or stipulations acknowledging paternity as provided for in section 742.10.” Id. “Paternity would be ‘otherwise’ established when a child is born into an intact marriage and recognized by the husband and the mother as being their child. In such a case, the husband would be the child’s ‘legal father’ to the exclusion of all others.” Id. “Under any other interpretation, a husband could never be more than a presumptive father absent an adjudication of paternity.” Id. “Had the legislature intended such a drastic departure from the common law, it would have specifically provided that a man believing himself to be the father of a child born during the mother’s marriage to another man has the right to sue to establish his paternity.” Id.
In grappling with what potential recourse a putative father may have and what standard to use to rebut the presumption of legitimacy (in cases involving opposing positions between a mother and a husband – primarily dissolution actions), the Florida Supreme Court in Privette looked to New York for guidance. In H. v. P., 457 N.Y.S.2d at 491, New York’s intermediate appellate court stated that, while the presumption of legitimacy is rebuttable, it will not fail unless common sense and reason are outraged by applying it to the case at hand. The Florida Supreme Court in Privette considered this to mean that “there must be clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father.” Privette at 309. This test is equivalent to the one required to terminate parental rights under Chapter 39, Florida Statutes. See Privette at footnote 7. “Thus, if a test shows that Respondent is the child’s biological father, this fact without more does not constitute grounds to grant a paternity petition.” Privette at 309. In further discussing the standard to overcome the presumption of legitimacy at footnote 7 the Court stated as follows:
We essentially are dealing with a species of termination proceedings when the petition will have the effect of vesting parental rights in the putative natural father and removing parental rights from the legal father. We do not see how a court constitutionally could apply a standard less than that recognized in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and other applicable case law where this is true.