Category: Paternity

Who’s Your Daddy? Florida’s New Paternity Law

If it is a wise child that knows its own father, the Florida Supreme Court just created a new paternity law last week to help children know their true fathers. The court settled whether a biological father is prohibited from establishing his parental rights to his child if the child was born to a married woman.

Not Your Father’s Paternity Law

Perkins is the biological father of his daughter. Perkins and the child’s mother, Simmonds, engaged in a three-year relationship. Unknown to Perkins, his girlfriend was already married to another man.

When Perkins – the biological father – wanted to assert his child custody rights over his daughter, Simmonds and her husband, Ferguson, objected. Ferguson – the legal father – asserted his status as the child’s legal father– by virtue of his marriage to Simmonds – to block Perkins’ rights over his daughter.

Some interesting facts about the case:

  • Perkins was at the hospital for the child’s birth. Ferguson was not.
  • Simmonds declined to have Ferguson’s name listed as on the birth certificate. Simmonds gave the child Perkins’s last name and raised the child with Perkins.
  • Perkins and Simmonds lived together with the child.
  • Perkins has taken the child to doctor’s visits and enrolled the child in day care. Perkins regularly and voluntarily paid child support to Simmonds for the child.
  • The child knows Perkins as “daddy.”

So what’s the problem?

The problem in this case is that after Perkins filed a petition to establish paternity Simmonds moved to dismiss it, saying Perkins can’t establish paternity because of the common law presumption of legitimacy. That presumption is one of the strongest in Florida law.

Florida Paternity Law

I’ve written about paternity issues before. Sadly, for Perkins, after an evidentiary hearing, the trial judge ruled that it was bound by precedent to dismiss his petition.

In Florida, a putative father had no right to seek to establish paternity of a child who was born into an intact marriage, when the married woman and her husband object.

Although the trial judge held an evidentiary hearing and found that the facts strongly indicate that allowing Perkins to have “some involvement in the child’s life” would be in the child’s best interests, the trial court ultimately concluded that it was constrained by Fourth District precedent to dismiss the petition as a matter of law.

The Father of All Custody Conflicts

There’s been a conflict among Florida courts over this issue. Florida law presumes that the husband of the biological mother of a child is the child’s legal father.

This presumption is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

In Florida, many courts have held that a biological father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.

Some courts in Florida have gone so far as to suggest that the presumption of legitimacy may never be rebutted. While others have held that the presumption of legitimacy may be rebutted in certain, rare circumstances.

Twinkle in One’s Father’s Eye: New Paternity Law

The Supreme Court resolved the conflict and determined that the presumption of legitimacy does not create an absolute bar to a biological father’s right to seek to establish his paternity when the biological father has “manifested a substantial and continuing concern” for the welfare of the child.

The presumption of legitimacy is overcome when there is a “clear and compelling reason based primarily on the child’s best interests.”

So, for Mr. Perkins, the presumption of legitimacy has been found to be rebuttable by a biological father. Evidence that the mother’s husband has abused, abandoned, or neglected the child – although relevant – is not required to establish that it would be in the child’s best interests to recognize the biological father as the legal father.

The Supreme Court opinion is available here.


How Accurate are DNA Paternity Tests

On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Tuesday, November 12, 2013.

You hear a knock at the door late one night. Someone hands you papers naming you as the father of a child you’ve never met. The name of the mother is unfamiliar to you. Your first thought is “what if my wife finds out?” Your second thought is “I should take a DNA child custody test to see if I’m the father!” How accurate are these tests?

In cases where a man disputes he is the father of a child – and in some cases a court can prohibit you from even testing to find out – you may want to take a DNA paternity test.

In a DNA test, a Q-tip is scraped on the inside of your cheeks to collect buccal skin cells. The collection process is painless – at least as compared to a blood test – and takes only about 10 seconds per cheek.

The skin cells are used to extract your DNA. The test is looking for repetitive regions in your DNA. The test examines your DNA for different genetic markers, or alleles, which vary from person to person. For example, a test may show you have allele D7S820 with 15 repeats in your DNA. Someone else, on the other hand, may have only 10 repeats of D7S820.

Since the mother, father and child all have the same number of repeats, it means that there is a high probability that the child must be the offspring of both parents. DNA centers usually test 17 or more repeat areas, since relying on only one area would be too small a sample size.

But, what if the testing laboratory incorrectly analyzes a DNA sample? The Oklahoma Supreme Court considered exactly this problem in Berman v. Laboratory Corp. of America.

In Berman, the mother asked Oklahoma to determine the paternity of her child, and to collect child support from the father. An agency arranged for a lab to collect DNA for the test. The lab incorrectly reported that a man was not the child’s father.

However, after a different laboratory performed the DNA test, it found the same man was the father. The mother sued the first lab for the loss of past and future child support the father would have paid if the DNA test results were correct.

The Oklahoma Supreme Court decided that the lab owed a duty to the parents to use care in conducting accurate DNA testing for child support.

The importance of reliable and accurate DNA results cannot be overstated. You should always have professional advice instead of just trusting a piece of paper assuring you “probability of paternity 99.99%”.

Father Reproductive Rights

On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Friday, July 26, 2013.

The Supreme Court’s recent DOMA decision – about the fairness in treating homosexual marriages equally under the law – got me thinking: do Fathers have equal reproductive rights?

If a woman conceives a child with a man, and she does not want to raise the child, she really doesn’t have to. And, there is nothing a man can do about it, even if he really wanted to be a father. The choice is the woman’s alone.

Women have access to contraception, abortion services, foster care services and adoptive parents. If a woman wanted not to be a mother after becoming pregnant, she can choose not be a mother at any time she wants. Even over the strong objections of the father.

This is true even after the birth of the child. Many Florida cities have a Safe Haven for Newborns program allowing mothers to leave a newborn at certain hospitals and fire stations with no questions asked.

But if a woman has a child – either accidentally or without the father’s knowledge – and the father never wanted a child, he is out of luck. Sure, he can suggest an abortion, but if the mother wants to raise the child, he will be stuck with years of child support payments.

Do men now have less reproductive autonomy than women? Should men have more control over when and how they become parents, as women do?

The New York Times recently ran an editorial about this issue:

“if women’s partial responsibility for pregnancy does not obligate them to support a fetus, then men’s partial responsibility for pregnancy does not obligate them to support a resulting child.” At most, according to Brake, men should be responsible for helping with the medical expenses and other costs of a pregnancy for which they are partly responsible.

If a woman decides to give birth to a child without getting the biological father’s consent to raise a child with her, should he be forced into legal paternity?

Not allowing reproductive rights for fathers, and forcing child custody, could lead to disestablishment cases which are not in the best interest of the child. Biological fathers may also be use violence or threats when child support orders are enforced against them, or maybe abandon the child.

There is some wiggle room. In Florida we have a disestablishment of paternity statute which men can use after they break up with the mother. However, it generally requires newly discovered evidence that the father is not the biological father of the child.

When men and women have an unplanned pregnancy, men find that the law is stacked up against them. This unequal treatment under the law may be a matter that needs to be corrected. Is it time for men’s reproductive rights?