What Are The Rights Of A Man Who Fathered A Child With A Married Woman While Her Marriage Was Intact?

August 11, 2022

A Timeline Of Paternal Paternity Development In Florida Courts


Florida paternity laws have traditionally been unfriendly to the rights of a man who has a child with a woman who is married to someone else. There have been recent changes, though. We'll discuss how Florida paternity laws have progressed and the impact these changes may have on a father's right to a relationship with his child, even if the child is being raised in another household.

1.    Presumption of Legitimacy (The Old Standard)

In the past, when a child was born toa married woman, the biological father could not sue for paternity due to the presumption of legitimacy. Because paternity tests were not always available, courts relied on the marital relationship of the wife and husband to presume that any child born within a marriage was fathered by the husband. The courts kept this presumption not only because DNA tests had yet to exist; in fact, it was a common belief that it was in the child's best interest to be raised by the married couple, even if the husband in the relationship wasn't the child's natural father. Today, partly due to the scientific advancement of DNA, family courts acknowledge that there isn't a one-size-fits-all approach regarding children and paternity, and that many unique relationships exist surrounding the birth of a child.  

In theory, the presumption of legitimacy would be rebuttable, but some courts did not permit a rebuttal in practice.[i] This presumption was well meaning, yet, some courts found that it conflicted with the constitutional right of fathers, recognized by the U.S. Supreme Court.[ii] According to the U.S. Supreme Court, the interest of [fathers] in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.[iii]

However, Florida courts, like courts in other states, were torn on how to protect the best interests of the child. After all, children are vulnerable, often powerless, and unable to shield themselves from the consequences of adult choices. Thus, understandably, ensuring that the biological father's rights were equally protected was sometimes a challenge for courts to reconcile.[iv] The reasoning behind these rulings was that the presumption of legitimacy was a rock-solid rule and that the biological father did not have standing to intervene in an intact marriage because doing so might harm the welfare of the child.[v]

For example, any number of potentially harmful scenarios could arise from such a circumstance. If the wife had an affair, her husband might divorce her, but she may still want nothing to do with the biological father. In this situation, she may prefer being a single mother, keeping the child away from the natural father, possibly giving the child to a relative to raise, or even resenting the child because of the complicated situation.

If the relationship which led to the child, happened before she married, she and her husband might prefer to raise the child as their own with no involvement from the child's father. Whether the husband is accepting or not, he may later become resentful towards the child, or abusive. He may treat the children that he knows he's fathered with his wife differently from the child with a different father.

Four decades ago, Florida courts seemed to break ground in protecting the interests of children and their biological fathers. [vi] For example, in 1980 the Florida Supreme Court reasoned that the biological father has standing to bring a paternity suit when he "manifest[s] a substantial and continuing concern for the welfare of the children." [vii]

And again thirteen years later, the Florida Supreme Court held that "there must be a clear and compelling reason based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father." In other words, Florida courts were starting to open the door to permitting the biological father to rebut the presumption of legitimacy. [viii]

However, the holding in Privette demonstrated that, to some degree, the biological father would continue to face an uphill battle. In that case, mere proof of a D.N.A. connection with the child was not enough to assert parental rights over the child. While we can only assume the struggles family courts endured in wrestling with these issues, what is certain is that the various scenarios surrounding childbirth eventually led us to where we are today.


2.    The Simmonds v. Perkins Decision (The New Modern Era)

In 2018, The Florida Supreme Court held that the presumption of legitimacy is rebuttable when the biological father demonstrates a "substantial and continuing concern for [the child's welfare]." [ix] In this case, Connor Perkins had a three-year relationship with Treneka Simmonds. [x] Initially, he was unaware that Simmonds was married, but—even after he learned that she was married, he continued a relationship with her, believing that she was only married for immigration purposes and intended to divorce her husband eventually. [xi] Simmonds became pregnant with Perkins' daughter. [xii] Perkins, not Simmonds' husband, was present at the birth, Simmonds gave their daughter Perkins' last name, and Perkins would continue raising his daughter with Simmonds (sometimes living jointly and sometimes separately). [xiii]The child would call Perkins "daddy" and acknowledge Perkins' mother as her grandmother—this all while Simmonds' marriage to another man was intact.[xiv]

Not surprisingly, Perkins sued to establish paternity, and Simmonds (and her husband) objected. [xv]They argued that Perkins did not have standing to sue because Simmonds' marriage was intact at the child's birth, and she was still legally married, but the Circuit Court ruled that Perkins, indeed, lacked standing where the married couple objected, as a matter of law. [xvi] The appellate court reversed and remanded. [xvii]

When the case reached Florida's Supreme Court, however, the Court held that the common law presumption of legitimacy does not create an absolute bar to the biological father's action to establish paternity, despite the married couple objecting. [xviii] The Court reasoned that the test of whether the birth father has standing depends on whether he "manifested a substantial and continuing concern for the welfare of [his child]." [xix] His standing does not depend on whether the married, lawful parents object. [xx]

The Court, thereby, opened the door for biological fathers to intervene in an intact marriage to establish paternity.


3.    The Aftermath of Simmonds v. Perkins

As a result of the Simmonds decision, biological fathers can assert their paternity and affirm their constitutional rights. They are lawfully permitted to register with the Putative Father Registry so that they may become aware of the married mother's decision to put their child up for adoption. They are lawfully permitted to sue for child custody and child support. They can inherit from their child and claim their child on their taxes, potentially. Moreover, they now have the constitutional authority to intervene in important matters as their child grows, such as their child's schooling, whether their child can get a passport and travel abroad, and so on. Previously, these fundamental rights, which many parents have taken for granted, were denied to biological fathers due to a well-intended common-law rule.

Florida's Supreme Court, however, held some 88 years ago that it "recognize[s] the natural, inherent, and consequently legal, right of parents to have the custody of their children." [xxi] Courts are moving forward in making it easier for a biological father to intervene in an intact marriage to assert his parental rights. But some challenges continue to exist. The Court in Simmonds states that before a father asserts his paternity, he must show that doing so is in the child's best interest by clear and convincing evidence. [xxii]

The Simmonds ruling can have a direct effect on the child's best interest. Naturally, no family court would make a decision that impedes a willing, helpful father from participating in his child's life. When considering that the biological father can be expected to be a financial provider, Simmonds v. Perkins' holding might alleviate some of the impacts of Florida's child poverty crisis.

Furthermore, it is imperative that all children have access to accurate family medical history. Before this landmark ruling, the child would be dependent on only half of the family's medical history. This could have severe consequences, such as a delay in the child being tested early for a fatal condition or taking preventative steps when possible predisposed to an ailment. In that vein, the biological father might provide better support for the child's health by putting his child on his insurance coverage.


In conclusion, Simmonds v. Perkins is a landmark decision. Although it is still too soon to know the full range of how this case will impact the welfare and development of children, at least in theory, children are better served when a father—who wants to be involved in his child's life—is allowed to be present. No longer are biological fathers forced to be idle, passive observers regarding their child's development.

Now, they can have a say in their child's rearing, schooling, experiences, and protection. In turn, the child can benefit financially, medically, and emotionally from the support of the biological's father presence in life. Therefore, Florida Supreme Court's holding has the potential to positively impact the future of fathers' rights and children's development.


[i] See e.g., Lohman v. Carnahan, 963 So.2d 985,987 (Fla. 4th DCA 2007); Tijerino v. Estrella, 843 So.2d 984, 985 (Fla.3d DCA 2003); Johnson v. Ruby, 771 So.2d 1275, 1275–76 (Fla. 4th DCA2000).

[ii] See Troxel v. Granville, 530 U.S. 57 (U.S. 2000).

[iii] Id.

[iv] See, e.g., H.R.S. v. Privette, 617 So. 2d 305(Fla. 1993); M.L. v. Dep’t of Children and Families, 2017 WL1718807(Fla. 4th DCA 2017) (holding that a "casual interest” in the child's welfare does not trigger parental constitutional rights); Shuler v. Guardian Ad Litem Program, 17 So. 3d 333 (Fla. 5th DCA 2009).

[v] See Slowinski v. Sweeney, 64 So.3d 128, 129(Fla. 1st DCA 2011); see also G.T. v. Adoption of A.E.T., 725 So.2d 404,410 (Fla. 4th DCA 1999).

[vi] We saw this in Kendrickv. Everheart, 390 So.2d 53 (Fla. 1980).

[vii] Id.

[viii] Privette, 617 So.2d at 309.

[ix] Simmonds v. Perkins, 247 So.3d 397 (Fla. 2018).

[x] Id. at 398.

[xi] Id. at 399.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id. at 400.

[xix] Kendrick, 390 So.2d at 61.

[xx] Simmonds, 247So.3d at 402.

[xxi] Frazier v. Frazier, 147 So. 464, 466 (DCA 1933).

[xxii] Simmonds, 247So.3d at 402.