Posted by Nydia Streets of Streets Law in Florida Divorce

In what could be viewed as a turning point in Florida law on fathers' child custody rights, the Florida Supreme Court recently issued a decision which grants standing to unmarried fathers to establish paternity despite the objection of the mother of the child and her husband. The case Simmonds v. Perkins, SC17–1963 (Fla. 2018) may give hope to fathers who show a vested interest in being a part of their children's lives. 

In this case, the mother of the child was married but conceived a child with another man, Mr. Perkins. Mr. Perkins was led to believe that the marriage was for immigration purposes, and he engaged in a three-year relationship with the mother. The parties even lived together for a period of time and at one point, the child lived solely with Mr. Perkins. The evidence was undisputed that Mr. Perkins was present at the child's birth (the husband was not), the child called Mr. Perkins "daddy", Mr. Perkins enrolled the child in daycare and took her to doctor visits, and Mr. Perkins voluntarily paid child support to the mother. 

Mr. Perkins filed a petition to establish his legal parental rights, and the mother moved to dismiss based on a long line of Florida case law which holds that a child born during a marriage is considered the legal child of the husband and wife, even if a paternity test later reveals the husband is not the biological child of the husband. If the husband and wife objected to the biological father establishing paternity, the biological father had no standing to establish his paternity, and the case was dismissed. This is what happened to Mr. Perkins since both the mother and and her husband filed pleadings objecting to Mr. Perkins establishing his paternity. 

Mr. Perkins appealed, and the appellate court agreed with him, holding it would not be in the best interest of the child to bar him from establishing his parental rights in light of the role he had played in her life since birth. To allow the mother and her husband to bar Mr. Perkins from continuing his role as a father based on a technicality would be unjust and harmful to the child's best interest. The Florida Supreme Court agreed, holding "the presumption of legitimacy is rebuttable by a biological father in the circumstances of Perkins and does not bar an action to prove paternity at the outset."

In most cases, the sooner a father asserts his parental rights, the better to protect his ongoing rights as a father in Florida. If you need to establish paternity in Florida, contact a Miami child custody lawyer to determine your options in proceeding.