Law Office Of Sam Jubran - September 2018

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THE COMPETING INTEREST OF PRESERVING MARRIAGE, CHILDREN, AND FUNDAMENTAL RIGHTS The Florida Supreme Court Case of Simmonds v. Perkins

Navigating the complexities of family law inevitably brings challenges to one’s notions of societal roles. These cases generate a web of emotional battles that require stamina and uncompromising fortitude to obtain the best results possible.The deeper we delve into these cases, the more convoluted the issues become. One recent case has redefined how Florida law views the parental rights of a father to a child he conceived with a married woman who is not his wife. Many years ago, a client of mine reached out to me for help establishing his parental rights for a child he conceived with a woman who, unbeknownst to him, was married to someone else.The common law presumption at the time stated that the custody of a child born into an intact marriage from a father outside of said marriage would remain with the married couple. So when my client approached the woman and her husband, they objected, deciding they were going to raise the child on their own.This meant that the only true father of this child would not have standing to establish his parental rights.The judge determined that Florida’s common law “presumption of legitimacy” applied and my client reluctantly accepted the trial court’s decision. Fortunately, as a result of the Florida Supreme Court’s decision in Simmonds v. Perkins, putative fathers who find themselves in this situation will no longer be automatically denied the opportunity to pursue their parental rights.The facts of the Simmonds case are that Treneka Simmonds and Connor Perkins had been involved in a three-year relationship together, and Perkins had been under the impression that Simmonds was not married for anything other than immigration

Perkins appealed the trial court’s dismissal of his petition, and the Fourth District Court reversed the trial court’s decision; then the case went to the Florida Supreme Court for the high court to resolve conflict between the state’s District Court of Appeals.The Florida Supreme Court held that a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage where the mother and her husband object so long as the biological father has manifested a substantial and continuing concern for the welfare of the child. So what does this mean? “Manifesting a concern for the welfare of the child” could be a concern that the mother’s marriage to her husband is not intact, or the child has developed a relationship with the biological father.A substantial concern for the welfare of the child could also be present when the biological father feels it is necessary for him to contribute toward the financial support of the child. I recently heard from my former client, who informed me that his daughter, who is now an adult, had been living with him since she turned 4 years old.This came to be after her mother ended her marriage and the husband never tried to contact his daughter, who remains bitter toward her mother.With the Supreme Court’s recent ruling in Simmonds v. Perkins, this child’s life could have been different had my client been entitled to pursue his paternal rights when he originally sought to do so.

purposes and that she intended to get a divorce. Simmonds had a child with Perkins while she was married. Simmonds’ marriage with Ferguson remained intact throughout her affair.When the child was born, the hospital explained Perkins’ husband would be listed as the child’s father on the birth certificate in accordance with state law.A DNA test confirmed that Perkins was the father, and he elected to file a petition seeking to be legally identified as the child’s father. After the child was born, Perkins and Simmonds lived together for a period of time with the child. Perkins took the child to doctor’s visits, enrolled the child in day care, and paid child support to Simmonds.The child even refered to Perkins as “Daddy.” But when Perkins filed a petition to establish paternity, Simmonds moved to dismiss the action, and the trial court granted reasoning that “a putative father has no right to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.” Even though the trial judge commented that it would be in the child’s best interest for Perkins to have some involvement, the court dismissed his petition because it felt it legally was required to do so.

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