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Not just the baby-daddy

On Behalf of | Mar 29, 2019 | Child Custody

Florida’s groundbreaking caselaw on the rights of biological fathers and married mothers

In June 2018, the Florida Supreme Court released an important opinion that, in essence, recognized that the biological father of a child born to a mother who is married to another man should not be shut out from pursuing paternity and the paternal rights and responsibilities that go with it when he has shown “substantial and continuing concern for the welfare of the [child].”

Story of the case

The circumstances in Simmonds v. Perkins were compelling. Treneka Simmonds and Connor Perkins were in a relationship for three years, during which time Simmonds was married to Shaquan Ferguson, at first unbeknownst to Perkins. After Perkins learned of the marriage, Simmonds told him she was going to get a divorce and that the marriage was for immigration reasons only.

Simmonds and Perkins had a child and Perkins attended the birth. Simmonds did not put her husband’s name on the birth certificate and gave her daughter Perkins’ last name. The three of them lived together for a time and for another period, Perkins cared for the girl with Simmonds’ consent. The daughter calls him daddy and he paid child support without a court order.

Perkins petitioned the Florida court to establish his paternity and for orders for timesharing and child support.

Presumption of legitimacy

The common law presumption of legitimacy is a legal concept established by common law (court-made law instead of legislation). The principle, rooted in historical morality, establishes the legal presumption that when a child is born to a wife in an intact marriage, the law presumes that the husband is the father and is, in fact, the legal father.

Historically, the presumption prevented the child from being “illegitimate,” bound the husband to support the child and gave the child inheritance rights.

Applying this presumption, Ferguson, Simmonds’ husband, was the legal father of her child even though the parties did not dispute that Perkins was the biological father. When Perkins went to court to assert his rights (and take on responsibility) as the child’s father, Simmonds and Ferguson asked the court to dismiss the petition based on the presumption of legitimacy.

The trial court said that Perkins had no right to seek paternity because the mother and her husband in an intact marriage objected. On appeal, the Fourth District Court of Appeal reversed, clarifying that the putative biological father can rebut the presumption of legitimacy in “certain, rare circumstances.”

Split in state courts

The Florida Supreme Court agreed to hear the case to resolve a split among the state appellate district courts, some of which, contrary to the Fourth District, treated the presumption of legitimacy as an “absolute bar” to a biological father challenging paternity when the child at issue was born into an intact marriage and the couple objects.

The Supreme Court agreed with the Fourth District, saying that the putative biological father of the child of a married woman has the right to file a petition for paternity and related matters if he has shown “substantial and continuing concern” for the child’s welfare.

Once the biological father has standing before the court, to overcome the presumption of the husband’s paternity — even when it is clear that the petitioner is the biological father instead of the husband — the petitioner must show a “clear and compelling reason based primarily on the child’s bests interests” to overcome the presumption and establish paternity in the biological father.

The Simmonds opinion is on Westlaw at 247 So.3d 397.


The LAW OFFICES OF FORREST & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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