Memorandum Of Law: Paternity and Standing


                This is a paternity case.  The child has not yet been born.  The mother is married and the client is not her husband.  The client believes he is the father of the unborn child and wants to establish his paternity.

Issue 1: Is there a way to destroy the presumption that the unborn child is the legitimate child of the married man?  If so, how do we establish that the child is the legitimate child of the client?

                A child born to an intact marriage is presumed to be the legitimate child of the spouse.  This presumption arises based on the public policy interest of advancing the best interests of the child.  Dept. of Helth and Rehabilitative Serv v. Privette, 617 So. 2d 305, 307 (Fla. 1993). The legal father has an unmistakable interest in maintaining a relationship with the child, and a putative father generally lacks standing to challenge paternity.  Id. at 308.  “There must be a clear and compelling reason based primarily on the child’s best interests to overcome the presumption o f legitimacy even after the legitimate father is proven not to be the biological father.”  Dept. of Health and Rehab. Services v. Privette, 617 So. 2d 305, 309 (Fla. 1993.  However, when an unwed father can show that he has manifested a substantial concern for the welfare of his illegitimate child, and the legal father has not, he may be accorded standing to assert an interest with respect to that child.  L.J. v. A.S. 25 So. 3d 1284, 1288 (2nd DCA 2010).  In L.J. v. A.S., the legal father was not willing and able to help the child, but the biological father was.  The court determined that it was in the best interests of the child for the putative father to have standing to establish paternity. Id. at 1290. 

This standing does not exist if the legal father is taking care of the child.  When a husband and wife of an intact marriage have chosen to raise a child together, and the legal father has accepted all the rights and responsibilities for the child, “a man who may have contributed his DNA to the child ‘has no statutory or constitutional right to intrude into the private decision.”  J.S. v. S.M.M., 67 So. 3d 1231, 1234 (Fla. 2nd DCA 2011) (quoting Lohman v. Carnahan, 963 So. 2d. 985, 987 (Fla. 4th DCA 2007).  If the husband and wife of an intact marriage both object to a putative father’s paternity action, the action cannot proceed.  J.S. at 1234.  As long as there is no pending dissolution proceeding, the court will not evaluate whether or not the marriage is intact.  Id.  So, if the married couple objects to the paternity action, the putative father does not have standing to commence with the action.  If either the husband, or the wife, does not object to the putative father’s action, standing might exist.  In Van Nostrand v. Olivieri, 427 So. 2d 374, 375 (Fla. 2nd DCA 1983), the Wife wanted to have paternity established for a putative father, and the paternity action was allowed to proceed over the legal father’s objection. (cited by  J.S. at 1234).

 Even if both parents object at the time of the paternity action, the putative father could

possibly achieve standing   if the mother has acknowledged his paternity by placing his name on the birth certificate and taking actions such as accepting support from the putative father.  J.S. at 1234 (citing Lander v. Smith, 906 So. 2d 1130, 1131 (Fla. 4th DCA 2005).  However, this holding relies on the specific facts of the case  amounting to a circumstance in which “’common sense and reason are outraged’ by rigidly applying the presumption of legitimacy.”  Lander at 1134.  The putative father conceived the child with the mother while she and her husband were separated, he developed a relationship with the child and supported the child while the legal father was not present.  Id.  Then, the legal father and mother reunited, and both objected to the biological father’s paternity action.   Id.  The result of this case has not been achieved in any case outside this narrow set of facts, and it would be unlikely to achieve the same results again because of the strong presumption in favor of legitimacy.

                Our client’s standing to file a paternity action rests primarily on the mother and legal father’s position in the matter.  If the couple is unified in their objection to our client’s paternity action and intend to raise the child as theirs assuming all responsibility and benefits from parenthood, our client will not be able to achieve standing to challenge paternity. 

Issue 2: Can we file a paternity case before the child at issue has been born?

                Public policy in Florida dictates “that the ‘legal father’ of any child born of a married woman must be that woman’s husband unless a paternity action has been resolved prior to the child’s birth.”  J.S. v. S.M.M, 67 So. 3d 1231, 1232 (Fla. 2nd DCA 2011).  This public policy is incorporated into Section 382.013(2)(a) Florida Statutes, which states, “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”   This means that a paternity action can and must be filed before a child is born to a woman in an intact marriage whose husband is not the biological father of the child. 

Issue 3: Can a DNA test to establish paternity be done at the hospital once the child is born?

                Generally a party in a family law case is not entitled to an order requiring the other party to submit to genetic testing.  Dep’t of Revenue ex rel Chambers v. Travis, 971 So. 2d 157, 162 (Fla. 1st DCA 2007) (citing Dep’t of Revenue ex rel Freckleton v.Goulbourne, 648 So. 2d 856, 857-58 (Fla. 4th DCA 1995).  However exceptions are made when, “(1) the proceedings place paternity ‘in controversy’ and (2) ‘good cause’ exists for the testing.”  Id.  The court must hold a hearing prior to the blood test being ordered where both parties, the legal father, and a guardian ad litem representing the child’s interests present testimony and argument.  Gilbertson v. Boggs, 743 So. 2d 123, 127 (Fla. 4th DCA 1999) (citing Privette, 617 So. 2d at 309).  For a DNA test at the hospital to be ordered, the paternity action must have been initiated and a Privette hearing must have occurred where the child’s interests were represented by a guardian ad litem.  The court must determine that the DNA test would be in the child’s best interests before the DNA test can be ordered. 

By Kenny Leigh