Biological Fathers and Standing-Putative biological father can establish standing to challenge paternity and assert paternal rights by demonstrating that he has shown a substantial and continuing concern for the welfare of the children

M.L.H. v. Dep’t of Children & Families, 2018 Fla. App. LEXIS 10935, 43 Fla. L. Weekly D 1782, 2018 WL 3672945 (Fla. 2d DCA Aug. 3, 2018).

The trial court erred in holding that, as a matter of law, the biological father lacked standing to assert his paternal rights based on the presumption of legitimacy of a child born to an intact marriage.  Although the mother was married to another man at the time of conception and birth, the biological father was listed as such on the twin’s birth certificates, neither the mother nor the legal father challenged his standing, the biological father had consistently asserted his parental rights to the children from the date of their birth, and he went to great lengths to establish paternity.

The Second DCA discussed the recent opinion of the Supreme Court of Florida, Simmonds v. Perkins, 247 So. 3d 397, 43 Fla. L. Weekly S 273 (Fla. June 28, 2018), noting that it resolved a conflict among the District Courts regarding the circumstances under which a putative biological father could challenge paternity of a child born to an intact marriage, and reaffirming the standard previously set forth in Kendrick v. Everheart, 390 So. 2d 53 (Fla. 1980).

Reversed and remanded.

Practice Tip: In cases where a putative biological parent is taking affirmative action to assert parental rights or to be considered as a  placement, the program should support such effort if it is in the best interest of the child to do so. Although there is a strong presumption of legitimacy of a child born to an intact marriage, in Florida, a putative biological father is not precluded from challenging paternity as a matter of law, and may overcome the presumption by establishing a clear and compelling reason based primarily on the child’s best interests.

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