Posted by Nydia Streets of Streets Law in Florida Child Custody
A recent appellate case seems to test many parts of Florida paternity laws where a man who believed he was the biological father of a child born outside of wedlock was proven wrong on both fronts. The case is Orosco v. Rodriguez, 6D23-1415 (Fla. 6th DCA December 15, 2023).
The mother of the child was married to her husband at the time of conception of the child at issue in the case. She and her husband were separated and during this period of separation, she began a sexual relationship with another man who we will refer to as her boyfriend. During her relationship with the boyfriend the wife had a “one night stand” with her husband. She became pregnant and told the boyfriend he was the father. The boyfriend was unaware the wife was still married. At the child’s birth, the boyfriend signed the birth certificate and acknowledged paternity, while the wife indicated on forms related to the birth certificate that she was unmarried. The husband believed the parties were divorced since he signed divorce papers previously given to him by the wife, but she never filed them. The husband believed he could not be the father of the child because the parties had unprotected sex throughout their marriage and never conceived.
When the relationship between the wife and her boyfriend ended, he filed a petition to determine paternity and related relief. Genetic testing revealed the boyfriend was not the biological father of the child, but that the husband was the biological father. The wife then moved to join the husband as an indispensable party, and she and the husband filed a joint petition for establishment of paternity. The trial court ultimately entered a final judgment establishing the boyfriend as the legal father and denying the husband’s petition to establish paternity. The husband and wife appealed.
The appellate court noted “The trial court found there were competing presumptions of paternity—a presumption in favor of [the boyfriend] pursuant to section 742.10, and a common law presumption of legitimacy in favor of [the husband] as a result of his continuing marriage to [the wife]. Finding that [the boyfriend] was the only meaningful father the child has ever known, the trial court determined that the best interests of the child would be served by establishing him as the child’s legal father.”
The court reasoned “Although [the boyfriend] signed the birth certificate and voluntarily acknowledged paternity at the time the child was born in 2013, [the wife] was still married to [the husband]. A statute must be given its plain and ordinary meaning when its language is clear and unambiguous. [internal citation omitted]. The first sentence of section 742.10 states ‘this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.’ [The child] was not born out of wedlock. [. . .] Even though it was undisputed that [the husband and wife] were still married, the trial court found that the marriage between [the husband and wife] was ‘the least intact marriage possible, short of filing for a divorce.’ However, section 742.10 does not carve out an exception that would apply to children born during a damaged or failing marriage. Simply put, ‘[a]n intact marriage has been described as ‘the existence of a marriage without the pendency of divorce proceedings.’ [internal citations omitted]. There were no divorce proceedings pending between [the husband and wife] at that time; therefore the marriage was intact. Although both [the husband] and [the boyfriend] may have believed [the wife] was divorced from [the husband], the fact remains that she was not. As such, section 742.10 is inapplicable, and a presumption of legitimacy exists as a result of [the husband’s and wife’s] marriage.
Noting that a biological father has standing to establish paternity of a child born within wedlock according to Simmonds v. Perkins, 247 So. 3d 397, 398 (Fla. 2018), the appellate court distinguished that the boyfriend is not the biological father of the child, and therefore has no standing under Florida law to establish paternity, even as a psychological parent.
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