By: Franklin Sandrea-Rivero, Articles Editor, J.D. Candidate, May 2019, St. Thomas University School of Law.

On June 28, 2018, the Supreme Court of Florida resolved a decades-old conflict between the Florida district courts of appeal over the question of whether a biological father ever has standing to rebut the common law presumption of legitimacy. The presumption of legitimacy establishes that a child born into an intact marriage is presumed to be the child of the husband. See Florida Dep’t of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006). This presumption is so strong that a putative father’s confirmed biological link to the child—without more—is insufficient to grant him standing to file a Petition to Establish Paternity and thereby assert his rights over the child. See Dep’t of Health & Rehab. Servs. v. Privette, 617 So. 2d 305, 307 n.2 (Fla. 1993).

The virtually impenetrable shield surrounding the presumption of legitimacy stems from Florida’s policy of furthering the best interests of the child; this interest includes avoidance of the stigma attached when a child is declared illegitimate as well as the interest in ensuring the child maintains a continuing relationship with the biological father. See Privette, 617 So. 2d at 307. The benefit of avoiding the stigma of illegitimacy, however, can be outweighed by countervailing interests, such as the “child’s need for support, especially in light of any abandonment by the legal father.” Id. at 309.

The First and Third Districts however, have interpreted the presumption of legitimacy as being irrebuttable. Whereas the Fourth District found, in Perkins v. Simmonds, that the presumption of legitimacy should not be applied in a situation where the biological father in a situation where he has shown a developed relationship with the child. See Perkins v. Simmonds, 227 So 3d 646, 647 (2017) (reversing the circuit court’s denial of Petition to Establish Paternity where biological father was present at the hospital when child was born, and where the biological father took the child to her doctor’s appointments, enrolled her in daycare, voluntarily paid child support, and where the child called the father “daddy”).

The Florida Supreme Court, approved the decision reached in the Fourth District, and disapproved the rulings of the First and Third Districts, by reaffirming its position in a previous Florida Supreme Court case which found that a father had standing to establish his parental rights as long as he has “manifested a substantial and continuing concern for the welfare of the children.” See Kendrick v. Everheart, 390 So. 2d 53, 61 (Fla. 1980).

By holding that a father can rebut the presumption of legitimacy where he has shown a developed relationship with the child, the Florida Supreme Court gave hope to the scores of dads who had been denied their right to seek their parental rights by allowing them an opportunity to file a Petition to Establish Paternity in court even where the mother and husband object