Imagine a scenario where a man, let’s call him David, is dating a woman, named Jane. David and Jane have been in a relationship for a little over six months; however, Jane has yet to inform David that she was married 10 years ago to a man named Steve, whom she separated from more than five years ago but, for whatever reasons, has not gotten around to divorcing from just yet. Jane and Steve have not communicated in more than four years; they have no joint property and have been living completely separate lives for the last four years.
Now imagine that Jane becomes pregnant with David’s child, and at the time Jane informs David of the pregnancy, she also informs him of her still existent marriage to Steve. David is excited about the news of the pregnancy, but is taken aback by the information that Jane is married, and particularly by the revelation that Jane does not have an immediate intention to seek a divorce. Unfortunately, all of this creates an emotional and physical strain on David and Jane’s relationship and shortly after their child is born, they split up and David meets with an attorney to discuss establishing his paternal rights as the biological father of their child. It is at this time that David learns of the predicament that he finds himself in under Florida law.
Biological Father’s Paternal Rights in Florida
Under Florida law, for example, there is a very strong presumption of legitimacy that accompanies a child born to an intact marriage. Florida Statute 382.013(2)(a) states unequivocally, “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” Once children are born legitimate, they have a right, under the Florida Constitution, Article I, §§ 9 and 23, to maintain that status both factually and legally if doing so is in their best interests.
Protection of the Best Interests of the Child
The presumption of legitimacy is based on the policy of protecting the welfare of children, i.e., the policy of advancing the best interests of the child. Therefore, in these situations, the Court must determine if the child’s best interests would be served by transferring rights to a biological father. Some cases have held that the presumption of legitimacy should only be rebutted where common sense and reason would be outraged by not transferring rights to a biological father.
Courts throughout the United States, including in Pennsylvania, Utah, Maryland, Alabama, Kansas, Ohio, New York, Illinois and Oklahoma, to name a few, have held that the presumption of a child’s legitimacy and the policies related thereto are so weighty that they can defeat even the claim of a man proven beyond all doubt to be the biological father. Here in Florida, the courts have held that even if the legal father is proven not to be the child’s biological father, there still must be a clear and compelling reason as to why it is in the child’s best interests to overcome this strong presumption of legitimacy.
Claim of a Developed Relationship Between the Biological Father and Child
Florida courts have further held that a paternity claim for a child that is born to an intact marriage should only be recognized in those circumstances in which a claim of a developed relationship between the biological father and the child exists. In this regard, the biological father would be required to at least allege that a developed relationship exists between himself and the child, as a mere biological link to the child would not suffice, and if common sense and reason would not be outraged by rigidly applying the presumption of legitimacy, then it is likely the Court would not disturb the presumption of legitimacy and the biological father may find himself to be out of legal options.
If you or a family member has question about establishing paternal rights, it’s imperative to speak with an experienced family law attorney.
Attorney Russell J. Frank is a partner at CPLS. P.A. and focuses his practice areas on family and marital law.