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What Are Your Rights When You Have a Child With a Married Woman in Florida?

One of the things that can be both a strength and a weakness of the law is that it is slow to change. This gives the law a degree of certainty and stability, which is important. It also, though, means that the law can be slow to catch up with societal changes or advances in scientific technology. That can be especially true when it comes to the law of paternity. Most paternity law was created in a time when there was no technology to tell us who the biological father of a child was. So what do you do if you have fathered a child with a married woman and want to make sure that your relationship with the child and your parental rights are protected? One of the first things you should do is contact an experienced South Florida paternity attorney to discuss your rights and your options, since these cases can be complex.

The law says that, if a woman gives birth to a child while she is part of an intact marriage, that child is presumed to be the legal offspring of the mother and her husband. As is true of many presumptions that the law establishes, you can overcome the presumption if you have enough evidence that the presumption is, in your case, not correct. A recent Fourth District Court of Appeal case that originated in Broward County offered some information on this.

The heart of this legal battle was a baby born in February 2013. DNA testing was performed, and Connor was identified as the father. In September 2015, the biological father sought to obtain a court order of paternity. The mother opposed the request, arguing that the child was the product of an intact marriage and that Connor lacked the legal authority granted by the law even to bring the lawsuit (which is something called “standing”).

The biological father’s argument was that he did have the necessary legal standing to bring the paternity action, even though the mother was married to another man when the baby was born. He had DNA evidence that he was the biological father, and he also had proof that he had been a regular and active presence in the child’s life, including taking the child to medical appointments, enrolling the child in daycare, and voluntarily supporting the child financially.

Despite all of this proof, the trial judge said that the courts couldn’t help. Even though the child’s best interests supported Connor having a recognized relationship with the child, the trial court concluded that the child was a result of an intact marriage, that the mother and her husband objected to the biological father’s paternity action, and that those objections meant that Connor was, in terms of the legal system, out of luck.

The appeals court, however, threw out that ruling and revived Connor’s case. The presumption that a mother’s husband is, in cases of intact marriages, the child’s father is something that can be defeated in “rare circumstances.” Those circumstances included situations like Connor’s, which the court found nearly identical to the facts of a 2005 case, Lander v. Smith. In both cases, the mothers indicated to the biological fathers that they were divorced or were in the process of getting divorced. In both cases, the mothers gave the children the last names of the biological fathers. In both cases, the biological fathers supported the children financially. Most importantly, in both cases, the biological fathers had clear proof of strong parent-child relationships with the children.

If you find yourself in a paternity or other family law action, make sure you have the legal representation you need to protect your rights. Skilled Miami paternity attorney Sara Saba has been providing reliable advice and strong advocacy to her clients for more than 13 years. Our team is dedicated to meeting your family law needs. Contact us online or by calling (305) 450-8009 to schedule your consultation. Hablamos Español.

More blog posts:

My Ex Wants to Move Far Away from Florida with Our Child. What Can I Do?, Miami Divorce Lawyer Blog, April 27, 2018

High-Earning Celebrities Blake Griffin, Britney Spears Both Find Themselves in Child Support Disputes, Miami Divorce Lawyer Blog, March 23, 2018


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