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©2016 By Cristina Alonso, P.L.L.C. 

Biological Father's Parental Rights

July 2, 2018

 

The Florida Supreme Court has clarified that a biological father is entitled to rebut the common law presumption that a mother's husband is the legal father of a child born to an intact marriage, notwithstanding the mother or her husband's objection. See Simmonds v. Perkins, No. SC17-1963, 2018 Fla. LEXIS 1301, at *1 (June 28, 2018). In Simmonds, the Court held that the biological father has standing to rebut this presumption, known at common law as the "presumption of legitimacy," when he has "manifested a substantial and continuing concern" for the welfare of the child, Kendrick v. Everheart, 390 So. 2d 53, 61 (Fla. 1980). The Court further held that the presumption is overcome when there is a "clear and compelling reason based primarily on the child's best interests." Dep't of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla. 1993). Id. at *1-2.

 

The child at the center of the case is the biological daughter of Connor Perkins. Perkins and the child's mother, Simmonds, were in a three-year relationship. While that relationship was ongoing, Perkins was never informed that Simmonds was married to the man who would later assert his status as the child's legal father by virtue of his marriage to Simmonds. That man, Shaquan Ferguson, met Perkins on several occasions while Simmonds and Perkins were together, and yet Ferguson was never held out to be Simmonds's husband. At some point, Perkins knew Simmonds was married, but Simmonds told him that she was married for "immigration purposes" only and intended to get a divorce. In the words of the circuit court, when the child was born, Perkins had "no idea that there was an intact marriage."

While Perkins was at the hospital for the child's birth, Ferguson was not, and Simmonds declined to provide Ferguson's name to be listed as the child's father on the birth certificate. Instead, Simmonds gave the child Perkins's last name, and she began to raise the child and live with Perkins. Later, the child lived with Perkins without Simmonds, but with her consent. Perkins also regularly and voluntarily paid child support to Simmonds. The child knows Perkins as "daddy." Id. at *2-3.

 

Despite Perkins' relationship with his daughter, Simmonds and Ferguson moved to dismiss his petition to establish paternity, child support, and timesharing. Because Simmonds was married to Ferguson at the time of the child's birth and remains married to him, they argued Perkins had no rights based on the common law presumption of legitimacy . Id. at *3-4.  The circuit court agreed and dismissed the case. Id. at *4. On appeal, the Fourth District reversed, explaining that the presumption "is exactly that: a presumption" that may be rebutted in certain, rare circumstances, such as this. Id. at *5-*6. 

 

The Florida Supreme Court agreed with the Fourth District. In doing so, it disapproved of Slowinski v. Sweeney, 64 So. 3d 128 (Fla. 1st DCA 2011), and Tijerino v. Estrella, 843 So. 2d 984 (Fla. 3d DCA 2003), which were in conflict.

 

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