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Who is the Dad? Children Born out of Wedlock

April 26, 2020 by in General

It was black letter law that a child born to a married woman was presumed to be her husband’s child. In 2018, the Florida Supreme Court in Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018) took up the question of whether a biological father may rebut this legal presumption.

The case involved Treneka Simmonds, the child’s mother, Connor Perkins, the biological father, and their daughter. While Perkins and Simmonds were together, Simmonds never informed Perkins that she was married. Simmonds got pregnant during this affair with Perkins’ child. Perkins was at the hospital when their child was born, while her husband was not, and the child took Perkins’ last name. Perkins even took the child to doctor’s visits, enrolled the child in day care, and regularly and voluntarily paid Simmons child support. At one point, Perkins and Simmonds lived together with the child. Perkins filed a petition to establish paternity, and Simmonds moved to dismiss it on the grounds that Perkins’ couldn’t establish paternity because of the legal presumption of legitimacy.

The Florida Supreme court found that the presumption of legitimacy is rebuttable when the father has “manifested a substantial and continuing concern” for the welfare of the child. This presumption may be overcome by clear and compelling evidence based primarily on the child’s best interests.

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