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Victory for Biological Dads

By: Beth T. Vogelsang, Esquire

Connor Perkins was by all accounts a good father. He had a three-year relationship with Treneka Simmonds, during which time a child was conceived and born. Mr. Perkins was at the hospital for the child’s birth, the child was given Mr. Perkin’s last name, and Mr. Perkins and Ms. Simmonds proceeded to raise the child together.

Legal Father vs. Biological Father

Mr. Perkins took the child to doctors’ appointments and enrolled the child in day care. He voluntarily paid child support to Ms. Simmonds. The child referred to Mr. Perkins as “daddy.” There was only one issue. Unbeknownst to Mr. Perkins, Ms. Simmonds was married to another man on the date the child was born. Under Florida law, this made Ms. Simmonds’ husband the child’s “legal father.”

Petition to Establish Paternity

Mr. Perkins filed a petition to establish paternity, to determine child support, and for timesharing with his biological child. Ms. Simmonds and her husband moved to dismiss Mr. Perkins’ paternity action, arguing that the common law presumption of legitimacy barred Mr. Perkins’ lawsuit. Even though the facts strongly indicated that allowing Mr. Perkins to have some involvement in the child’s life would be in the child’s best interest, the trial court dismissed the lawsuit, concluding that a putative biological 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.

Supreme Court Ruling

The Florida Supreme Court accepted review of the case, and in a unanimous decision, it held that in certain situations, the legal rights of biological fathers outweighs the presumption of legitimacy, and the presumption may be rebutted. Simmonds v. Perkins, 247 So.3d 397 (Fla. 2018). The court acknowledged that the presumption of legitimacy was intentionally very strong, because it was designed to protect children from suffering the stigma of “illegitimacy,” and from being left without a father to support them. The presumption was also important to defend the peace and sanctity of marriage and families, at a time when it was not possible to resolve doubts about paternity with scientific certainty.

Nonetheless, the court concluded that a biological father of a married woman’s child has the right to bring an action to establish his paternal rights, even where the mother and the legal father object, as long as the biological father has manifested a “substantial and continuing concern for the welfare of the child."

Take-Away

Even though a biological father will face the burden to prove by clear and convincing evidence that replacing the mother’s husband as the legal father would promote the child’s best interests, this decision opens the door for biological dads to be legal dads too.

This decision recognizes changing societal attitudes toward marriage and parenthood. It also gives putative fathers standing to assert their rights in termination of parental rights cases. See, e.g. In the Interest of M.L.H. and D.H.H., children, v. DCF, ___ So. 3d ___, 2018 WL 3672945 (Fla. 2nd DCA 8/03/2018) (putative biological father had standing to assert his rights in action by DCF to terminate the parental rights of the mother and her husband).

If you have any questions or concerns regarding paternity, please feel free to contact me at beth.vogelsang@henlaw.com.