By Zana Holley Dupee, Esq.
Many people are surprised to learn that Florida Law holds men responsible to support all children who are born to their wives, even if the child has a different biological father. The law indirectly announces and implements a policy that children need families, homes, heritage, and inheritance more than biological fathers need rights or even responsibilities. In fact, the child has a due process constitutional right to legitimacy in Florida. The presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the child the right to remain legitimate, both legally and factually, if doing so is in the child's best interest. See Art. I, § 9, Fla. Const.
Florida Statute 742.301 states, “Husband as legal father.—Except as provided in ss. 742.302-.305, a husband shall be the legal father, and he shall have all of the rights and responsibilities of a legal (natural) guardian pursuant to s. 744.301, for all children conceived by or born to his wife during the term of their marriage.”
The presumption of legitimacy was created primarily to protect the welfare of the child. Sacks v. Sacks, 267 So.2d 73, 76 (Fla.1972). The presumption of legitimacy presumes that a child of a marriage is a marital child. The courts have proven quite uneasy with the prospect of challenging the legal father relationship on the grounds that it is biologically inaccurate, particularly when it has existed for some time.
For centuries, proving progenitation was problematic, so the law relied on the presumption of paternity arising from marriage to the mother, which came to be described as the strongest presumption known in the law. At common law, this presumption was aided by Lord Mansfield's Rule, which prohibited either a husband or a wife from testifying that a child born during the marriage was not the marital father's child.
In a court of law, the husband may overcome this presumption, but only with satisfactory evidence before he can divest himself of the duty to maintain a child. The level of proof required to overcome this presumption was extremely high, especially since the wife and husband were prohibited from testifying and the biological father's testimony would have been a confession of a serious criminal offense. In these instances, the presumption was effectively substantive law, requiring a husband to raise all children born to a marriage.
Moreover, a man who fathers a child with a woman who is married to another man generally has no parental rights or responsibilities to the child. As to the biological father of a child born during the course of the mother's intact marriage, the mother's husband is the child's legal father unless and until a court effects the substitution. Shuler v. Guardian Ad Litem Program, 17 So. 3d 333 (Fla. Dist. Ct. App. 5th Dist. 2009)
Judge Sharp wrote in Callahan v. Department of Revenue, “mere biology [is] not a sufficient basis to disrupt an intact family. Pertinent considerations should relate to the best interest of the child.” In Department of Health and Rehabilitative Services v. Privette, the case that essentially created legal father status separate from biological fatherhood, the Florida Supreme Court agreed:
“It is conceivable that a man who has established a loving, caring relationship of some years' duration with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children's best interest to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.”
The United States Supreme Court recognizes parental rights as fundamental but in the process has consistently held full parental rights do not arise from progenitation alone. Instead, the federal constitutional right is focused on protection of the parental relationship.
For these reasons, Florida law makes it difficult or impossible for the mother or another ostensible father to contest legal paternity once it is established. A biological father of a child born into someone else's “intact” marriage has no standing to seek legal father status. There can be an exception where the marriage was broken before the biological father sought to claim legal fatherhood. Additionally, whether paternity is established by marriage or by acknowledgment, the courts will not entertain an action to disprove the status of an existing legal father without an evidentiary showing that it is in the child's best interest to do so.
As you can see, paternity rights involve a web of confusing, old-fashioned laws and constitutional rights. Do not assume that you know the rights of the marital or biological fathers of children in the State of Florida. This is a confusing legal field that is also evolving in light of quick and inexpensive modern DNA blood tests that can establish conclusively who is the child’s biological father.
If you have a legal situation involving paternity issues, you should retain an experienced lawyer to assist you with your case. Having a lawyer prepare the case properly for an evidentiary hearing in front of a judge can often help you to receive the legal outcome that you are hoping for. If you have a situation involving paternity issues in the state of Florida, and you would like to schedule a consultation with attorney Zana Holley Dupee, call (352) 379-5900.
Comments