In Florida, until recently, the law has a presumption was that any child born to a married woman was her husband’s child. This means that if you have been separated for 8 years, but never got divorced, and now have a child with your new partner, the law would still consider that child as your husband’s child. It seems a little antiquated and old-school, right?
Now that times are changing and family units look different, Florida’s laws are struggling to catch up. In the case of Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018), the Florida Supreme Court started to take steps to bring family law cases into the realm of what today’s family units may look like. Treneka Simmonds gave birth to a baby girl while she was married to Shaquan Ferguson. Ms. Simmonds, during her marriage to Mr. Ferguson, engaged in a relationship with another man, Connor Perkins. Mr. Perkins is the girl’s biological father. During the relationship, Mr. Perkins had no idea that Ms. Simmonds’ marriage to Mr. Ferguson was “intact”.
Mr. Perkins was not a deadbeat father. Mr. Perkins was at the hospital for his daughter’s birth. The daughter’s birth certificate lists Mr. Perkins’ last name. Perkins took the child to doctor’s visits and enrolled her in day care. He also regularly and voluntarily paid child support to Ms. Simmonds for the child. The child knows Mr. Perkins as “daddy.”
Mr. Perkins decided to file a Petition for Paternity to establish paternity, child support, and timesharing once his relationship with Ms. Simmonds ended. Ms. Simmonds asked the Court to dismiss Mr. Perkins’ case on the basis that since Ms. Simmonds was married to Mr. Ferguson at the time of the child’s birth, the child’s legal father should be Mr. Ferguson. Neither Mr. Ferguson nor Mr. Perkins, however, disputed that Mr. Perkins was the biological father of the child.
The original law and its’ presumption was created before the science of DNA testing became a consideration. The presumption was often rebutted when a husband did not want to support a child he did not believe it was his. The original law and its’ presumption sought to protect children from the stigma of “illegitimacy” and being left without a father to support them.
In the Perkins v. Simmonds case, the Florida Supreme Court found that the presumption of legitimacy is rebuttable by a biological father and does not prohibit an action to prove paternity.
How can Perkins v. Simmonds help you in preserving your rights?
- First, file for a paternity action by filing a Petition for Paternity in the county where the child lives.
- Second, request a DNA test for the minor child and the believed biological father.
- Third, the believed biological father should also register with the Putative Father Registry. The purpose of the registry is to permit a man alleging to be the unmarried biological father of a child to preserve his right to notice and consent in the event of an adoption.
Fourth, ask the court to determine if the biological father should be in the child’s life. Often times, the way to determine if the biological father should be in the child’s life is by using a Guardian ad Litem. A Guardian ad Litem is a court advocate who will interview all parties involved and determine what is in the best interests of the child. The Guardian ad Litem (GAL) will then issue a report to the judge. Find a GAL here: https://guardianadlitem.org/get-involved/find-local-program-2/