On June 28, 2018, the Florida Supreme Court handed down its decision in Simmonds v. Perkins (No. SC17-1963) clarifying a conflict of law that was present among Florida’s District Courts of Appeal. The Florida Supreme Court ruled that a biological father could seek to establish his paternity, even where the biological mother and her lawful husband objected.
The biological father has standing to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage – or the “presumption of legitimacy” – when he has “manifested a substantial and continuing concern for the welfare of the child. (See Kendrick v. Everheart, 390 So.2d 53, 61 (Fla. 1980).
The biological father (Father) of a child filed a petition to establish paternity, child support, and timesharing. Mother moved to dismiss the action, arguing that it was barred by the common law presumption of legitimacy because she was married at the time of the child’s birth and remained married. The circuit court concluded that it was constrained by Fourth District precedent to dismiss the petition as a matter of law. The Fourth District reversed, concluding that the presumption of legitimacy should not be applied to bar this action. The Supreme Court affirmed, holding that the presumption of legitimacy does not create an absolute bar to an action by a biological father to establish parental rights when the child’s mother was married at the time of the child’s birth and both she and her husband object to the action.
Posted by Ryan T. Fasso, Esq.
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