Fatherhood in Florida by Judge Sue Robbins

WHY IS THIS A CRITICAL ISSUE?

The Florida Bar

Journal

December, 2010 Volume 84, No. 10

Fatherhood in Florida

by Judge Sue Robbins

Page 24

Florida courts have been firm in asserting that a child has only one father, and that paternal rights and responsibilities cannot be spread or shared between two or more individuals.¹ However, the reality of the law is somewhat more complex. A man may be a presumptive father, a putative father, a prospective father, or an unmarried biological father, and yet have no rights other than notice of proceedings with respect to the child. If the child is born to a woman who is married to someone other than the man in question, he may be entitled to even less.² Paternity has been distinguished from legitimacy so that the rights and duties of fatherhood can sometimes be shared, or transferred from one man to another, without disturbing the child’s legitimate status.³ A man may be proven to be the biological father of the child, but not be recognized to have any parental rights.⁴ Parents may stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child. Thereafter, the father may be required to be joined as a party in a termination of parental rights case because his rights continue.⁵

This article will provide a broad overview of what it means to be a father under different statutes, and will summarize, compare, and analyze the current law of fatherhood in Florida, not only under the paternity statute itself, but also under the statutes concerning dependency, dissolution of marriage, adoption, and other statutes.⁶

Fatherhood under Ch. 39

Section 39.01(49) defines what it means to be a “parent”:

“Parent” means a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under Sec. 63.062(1). If a child has been legally adopted, the term “parent” means the adoptive mother or father of the child. The term does not include an individual whose parental relationship to the child has been legally terminated, or an alleged or prospective parent, unless the parental status falls within the terms of Sec. 39.503(1) or s. 63.062(1) (emphasis added).

Section 63.062(1) enumerates those persons whose consent to the adoption of the child is required as follows:⁷

[A] petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in Sec. 63.082 after the birth of the minor or notice has been served under Sec. 63.088 to ...

(b) The father of the minor, if:

1. The minor was conceived or born while the father was married to the mother;

2. The minor is his child by adoption;

3. The minor has been adjudicated by the court to be his child by the date a petition is filed for termination of parental rights;

4. He has filed an affidavit of paternity pursuant to Sec. 382.013(2)(c) by the date a petition is filed for termination of parental rights; or 

5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required time frames, and has complied with the requirements of subsection (2).

Ch. 39, unlike Ch. 63, uses gender-neutral language, and does not use the terms “putative father” or “unmarried biological father.” Instead, Ch. 39 uses the term “prospective parent,” which it defines as a “person who claims to be, or has been identified as, a person who may be a mother or a father of a child.”⁸A prospective parent is not a parent under Ch. 39 unless “the parental status falls within the terms of Sec. 39.503(1).” Therefore, a prospective father may be regarded as a parent if he was married to the mother at the probable time of conception of the child or at the time of birth of the child; if he was cohabiting with the mother at the probable time of conception; if the mother has received payments or promises of support with respect to the child or because of her pregnancy from him and if he claims to be the father; if the mother has named him as the father on the birth certificate or in connection with applying for or receiving public assistance; or if he has acknowledged or claimed paternity of the child.⁹ The statute does not specify the manner in which one must acknowledge or claim paternity.

Likewise, according to Ch. 39, a person identified as a prospective father may be regarded as a parent if he fits under the provisions of §63.062(1) as a person whose consent is necessary for adoption. This identical language is included in the definition of “parent” under Ch. 39 and adds further to the confusion in meaning.

Section 39.503(8) provides a mechanism for a prospective father to become a “party to the proceedings” and to be treated as a “parent”:

[T]hat person must be given the opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department. A prospective parent who files a sworn affidavit of parenthood while the child is a dependent child but no later than at the time of or prior to the adjudicatory hearing in any termination of parental rights proceeding for the child shall be considered a parent for all purposes under this section unless the other parent contests the determination of parenthood. If the known parent contests the recognition of the prospective parent as a parent, the prospective parent shall not be recognized as a parent until proceedings under chapter 742 have been concluded. However, the prospective parent shall continue to receive notice of hearings as a participant pending results of the chapter 742 proceedings.

When a termination of parental rights petition has been filed, an abbreviated version of that procedure applies.¹⁰ 

The time period in which a prospective father may establish paternity under Ch. 39 is different and longer than under Ch. 63. Under Ch. 39, the sworn affidavit of parenthood must be filed “no later than at the time of or prior to the adjudicatory hearing in the termination of parental rights proceeding for the child.”¹¹ Under Ch. 63, the affidavit of paternity must be filed by the time of the filing of the petition for termination of parental rights, although this time period will be extended in some situations to a date 30 days after the service of the notice of intended adoption plan.¹² 

Chapter 39 does not address biological paternity or DNA testing, and raises no presumptions concerning paternity from test results. Although §39.503(1) requires the court to conduct a specific inquiry¹³ as to paternity, it does not include the provision contained in Ch. 63 that if the inquiry identifies the father as a “man to whom the mother of the minor was married,” a “man who has filed an affidavit of paternity ... before the date that the petition for termination of parental rights is filed with the court,” or a “man who has adopted the child,” “the inquiry may not continue any further.”¹⁴ It is, therefore, not uncommon under Ch. 39 for more than one man to be identified as the prospective father with the “opportunity” set forth in §39.503(8). It is also not uncommon under Ch. 39 to have a prospective father identified through inquiry even though the mother is married to a different man. 

The court has no authority to determine a disputed issue of paternity in a Ch. 39 proceeding.¹⁵

Furthermore, even though personal jurisdiction over the parents is irrelevant to the exercise of the court’s jurisdiction in adjudicating a child to be dependent under Ch. 39, absent personal jurisdiction over the parent in question, the court has no authority under Ch. 39 to order DNA testing.¹⁶ When paternity is contested, the parent, the Department of Children and Families, or another party or agency must initiate an appropriate proceeding in the family division of the circuit court.¹⁷ If the alleged or prospective father resides out of state, and personal jurisdiction cannot be obtained under the long-arm statute, the parent, DCF, or another party must petition the state court with jurisdiction (generally the state in which the child was conceived) for paternity or other appropriate relief.¹⁸ 

Fatherhood under Ch. 61

It is clearly the law in Florida that a child born or conceived during a lawful marriage is a legitimate child of the mother and the man to whom she is married.¹⁹ Thus, a putative father is generally not allowed to intervene in a dissolution of marriage proceeding to assert paternity over the objection of the husband.²⁰Likewise, he will generally not be able to successfully file an action for paternity over the objection of the husband under Ch. 742.²¹ However, it may be narrowly possible for the putative father to establish paternity even over the objection of the husband through a Ch. 742 proceeding or a declaratory judgment action, if the putative father is able to prove that he has established a relationship with the child and that the husband has been remiss in fulfilling his role as a father.²²

Since 1997, however, there has been a difference in Florida between “legitimacy” and “paternity.” Those two concepts are “related, but nevertheless separate and distinct concepts.” As the result of Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997), a child can be a legitimate child of a marriage, but have no right of support from the man to whom the mother was married on the date of birth. A husband can deny paternity in a dissolution of marriage proceeding and avoid any duty of support. Although HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993) and some of its progeny²³ have spoken of terminating the parental rights of the husband, other cases make it clear that the rights of a parent may not be terminated in any proceeding other than a termination of parental rights proceeding under Ch. 39 or Ch. 63.²⁴ 

Parents cannot stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child. Such an order is void, leaving open the possibility that the later-born child can petition for paternity and child support.²⁵ Florida public policy and law are unequivocal in declaring that parents cannot barter away the interests of their children or exclude the courts from reviewing terms or conditions of custody, visitation, or support.²⁶ An order based on a stipulation between the parties providing that the husband has surrendered and waived all parental rights in return for the wife’s waiver of entitlement to child support is void for lack of jurisdiction in that it attempts to sever parental rights without invoking any of the statutory provisions governing termination of parental rights.²⁷

A final judgment of dissolution of marriage is generally regarded as res judicata on the issue of paternity of the children who were conceived or born during the marriage.²⁸ Fraudulent misrepresentation about biological paternity is intrinsic and not extrinsic fraud, thus, affecting the date for filing a motion for relief from judgment or action assailing the judgment.²⁹ This outcome has been changed to the extent that Ch. 742 now allows disestablishment of paternity under some circumstances.³⁰

Fatherhood under Ch. 63

Section 63.032(12) defines “parent” as: 

a woman who gives birth to a child or a man whose consent to the adoption of the child would be required under Section 63.062(1). If a child has been legally adopted, the term “parent” means the adoptive mother or father of the child. The term does not include an individual whose parental relationship to the child has been legally terminated or an alleged or prospective parent. 

An “unmarried biological father” under §63.032(19) is: 

the child’s biological father who is not married to the child’s mother at the time of conception or birth of the child and who, before the filing of a petition to terminate parental rights, has not been adjudicated by a court of competent jurisdiction to be the legal father of the child or has not executed an affidavit pursuant to Section 382.013(2(c).

The circumstances in which the father’s consent for adoption is needed under §63.062(1) are recited in the previous discussion of procedures under Ch. 39.³¹ Similar to the inquiry described above in the Ch. 39 discussion, there is also a statutory inquiry concerning paternity under Ch. 63. The court is required to conduct an inquiry regarding the identity of:

(a) Any man to whom the mother of the minor was married at any time when conception of the minor may have occurred or at the time of the birth of the minor;

(b) Any man who has filed an affidavit of paternity pursuant to s. 382.013(2)(c) before the date that a petition for termination of parental rights is filed with the court;

(c) Any man who has adopted the minor;

(d) Any man who has been adjudicated by a court as the father of the minor child before the date a petition for termination of parental rights is filed with the court; and

(e) Any man whom the mother identified to the adoption entity as a potential biological father before the date she signed the consent for adoption.³²

Unlike the similar provision of Ch. 39, §63.088(4) specifically includes a directive that “if the inquiry identifies a father under paragraph (a), paragraph (b), or paragraph (c), the inquiry may not continue further.” (Emphasis added.)

Unlike the requirements of Ch. 39, Ch. 63 imposes very strict requirements on unmarried biological fathers who seek to preserve the right to notice and consent to an adoption under Ch. 63. Such a person must file a claim of paternity with the Florida Putative Father Registry (maintained by the Office of Vital Statistics of the Department of Health) which includes confirmation of his willingness and intent to support the child for whom paternity is claimed.³³ He must demonstrate a full commitment to the responsibilities of parenthood by providing financial support to the child in accordance with ability, and, if not prevented from doing so by the person or agency having custody of the child, regularly visiting the child at least monthly or maintaining regular communications with the child or with the person or agency having care or custody.³⁴

In Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189 (Fla. 2007), the Florida Supreme Court clarified that the unmarried biological father’s failure to timely file with the Putative Father Registry may provide a valid basis for the termination of that father’s parental rights. However, the adoption agency has an obligation to timely serve notice of the intended adoption plan, including notice of the Putative Father Registry, on the unmarried biological father, as long as his identity is known, and he may be located by diligent search. Thus, the stringent application of the requirements of the Putative Father Registry has been moderated by the decision in Heart of Adoptions. However, even before Heart of Adoptions, the actual efforts on behalf of unmarried biological fathers to establish paternity, to establish a relationship with their child, and to establish and provide support for the child and mother were recognized as satisfying legal requirements.³⁵

By contrast with Ch. 63, Ch. 39 is more liberal in preserving the rights of prospective fathers and requires much less action on their behalf to preserve actual or inchoate parental rights. Most of the differences in this regard between Ch. 63 and Ch. 39 can be understood from the point of view of the purpose behind the two statutes. The principles underlying Ch. 39 begin with the understanding that the main goal of the statute is to preserve and reunify families. By contrast, Ch. 63 is a “comprehensive statutory scheme” designed primarily to ensure “permanence, stability, and finality with regard to adoptive placements.”³⁶ In a Ch. 63 action for termination of parental rights, a man seeking to be recognized as the child’s father must act early and decisively to establish paternity and to preserve his right to notice and consent to adoption.

Fatherhood under Ch. 409

The Department of Revenue is authorized by law to initiate proceedings to establish paternity or child support or both.³⁷ Paternity can be established administratively³⁸ or judicially,³⁹ and procedures may include genetic testing. Under administrative establishment procedures in Ch. 409, if the genetic-testing results indicate a statistical probability of paternity that equals or exceeds 99 percent, the Department of Revenue may issue a proposed order of paternity.⁴⁰ Parties have an opportunity to object to administrative establishment of paternity, to contest paternity, and to request judicial involvement. Failure to take timely action can result in the loss of certain avenues of defense and review. The near-default nature of these proceedings greatly increases the number of cases in which more than one man may be recognized as the father of the same child.

Fatherhood under Ch. 742

Whether a man may be recognized as a father to a child in Florida is often unrelated to issues of biology and genetics. It will often depend on the reason for the establishment of paternity. Such a person may bring an action to determine paternity “when paternity has not been established by law or otherwise.”⁴¹ If paternity was established by operation of “law or otherwise” through prior court proceedings, or because the mother was married and the husband’s name appears on the child’s birth certificate as required by law,⁴² an action under Ch. 742 would generally not be permitted.⁴³ 

The procedures applicable under Ch. 742 expressly do not apply to proceedings under Ch. 39 and Ch. 63.⁴⁴Therefore the presumptions that govern determinations under Ch. 742 do not apply under Ch. 39 and Ch. 63. 

A child born or conceived while the mother is lawfully married is the presumptive child of the mother and her husband. If the child is conceived during the mother’s marriage to one man, and born during her marriage to a different man, it is generally the man to whom the mother is married on the date of the child’s birth who is the father.⁴⁵ Furthermore, if “the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock.”⁴⁶ An issue may arise about whether the man whom the mother married is the reputed father.⁴⁷ This may be evidenced by the identification as father on the child’s birth certificate, or whether in general the mother and her husband hold the husband out as the father.⁴⁸

Paternity may be established by execution by the parents of notarized voluntary acknowledgments.⁴⁹ This procedure is limited to children who are born “out of wedlock.” The term is not defined in the statute. Until 1975, §742.10 purported to provide “the primary jurisdiction and procedures for the determination of paternity for bastard children.”⁵⁰ A bastard child was one who was born to a woman who was not married. If she was married, the child was presumed to be the child of her husband. “Out of wedlock” was substituted euphemistically in 1975, but the meaning is the same. This is consistent with the requirements of the statute that “if the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father.”⁵¹ 

Scientific test results for paternity are admissible in evidence, and results with a statistical probability of 95 percent or higher create a rebuttable presumption that the alleged father is the biological father.⁵²

The presumption that arises from marriage is, since Daniel, a presumption of legitimacy. At common law, and in much of Florida law prior to Daniel, it was a presumption of paternity as well. The wife was not allowed to contest the paternity of her husband in a divorce proceeding or in a separate paternity action against a man other than her husband. The presumption which arose from the marriage could be overcome only by proof of impotence or lack of access by the husband to the wife.⁵³ 

In addition, at common law the lack of access had to be “total.”⁵⁴ A third party was not allowed to file a paternity action claiming that a child born while the wife was married to the husband was the biological child of the third party. Under current law, the husband or the wife may deny the biological paternity of a child born to the marriage. The wife is now allowed to bring an action for paternity against a man other than her husband. The putative father can raise the presumption of paternity in a child support action brought against him.⁵⁵ As discussed in previous sections, even if the husband asserts parental rights, a putative father may under narrow circumstances seek legal rights to a child through a Ch. 742 paternity action with respect to a child born during the mother’s lawful marriage to another man. He cannot prevail over the objection of the husband, even with undisputed scientific proof of biological paternity, absent evidence that he has established a relationship with the child and that the husband has in some manner failed to satisfy his duties as a father.⁵⁶

Fatherhood under Inheritance and Wrongful Death Statutes

Florida’s guardianship statute, Ch. 744, does not define who is a child’s “mother” or “father,” but does provide that the “mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.”⁵⁷

Although the language of §744.301(1) favors the mother of a child born out of wedlock, the cases interpreting the statute have actually provided greater rights to a putative father than he would have been afforded under Ch. 63 or Ch. 742. Under §744.301(1), if the putative father has “declared” himself, or if he has been “identified” or “known,” then his rights as a natural guardian are assured.⁵⁸ Again, the phrase “out of wedlock” is not defined in Ch. 744, but it is clear from the cases that it is the fact that the child was born to an unmarried woman that is determinative of the “out of wedlock” status.

Section 732.108 governs the right of a child who is born “out of wedlock” to inherit by intestate succession from his or her “father”:

(2) [A] person born out of wedlock is a ... descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father....

(c) The paternity of the father is acknowledged in writing by the father.⁵⁹

The statute does not define “father” or “out of wedlock,” but the concern addressed is whether the child is born to an unmarried woman. The statute legitimizes children for purposes of inheritance and prefers a liberal interpretation. However, in circumstances not governed by statute, the common law status of illegitimate children remains in force.⁶⁰ Accordingly, a child who is born during an intact, lawful marriage might be disallowed to claim that he or she is the child of a different deceased man for inheritance purposes. 

Notwithstanding the application of the common law, in several appellate court decisions in Florida, a child born to a lawful, intact marriage has been permitted to take by intestate succession from the estate of the child’s biological father.⁶¹ Such actions have been permitted both under a statute where the child was considered “illegitimate”⁶² and under a statute where the child was considered to be born “out of wedlock.”⁶³ In re Estate of Robertson, 520 So. 2d 99 (Fla. 4th DCA 1988), expressly declares that by replacing the word “illegitimate” with the words “out of wedlock” in the statute pertaining to intestate succession, the legislature did not eliminate a cause of action for a child against the estate of his or her biological father.⁶⁴

By contrast, in Achumba v. Neustein, 793 So. 2d 1013 (Fla. 5th DCA 2001), a case brought under the Florida Wrongful Death Act,⁶⁵ a child born during a lawful, intact marriage was not allowed to make a claim as a survivor against the estate of a man whom he claimed was his deceased biological father but who was not the mother’s husband.⁶⁶ The Achumba court declared that paternity could not be resolved in the context of a wrongful death action, and that Ch. 742 was “the exclusive remedy for establishing paternity.” In denying the claim of the child as a survivor, the Fifth District Court of Appeal considered the interests of the mother’s former husband, whose name was on the child’s birth certificate, and stated that “Florida does not recognize dual fathership.”⁶⁷ In response, the dissent argued that ever since Daniel, Florida has recognized a dichotomy in fatherhood.⁶⁸

In Daniels v. Greenfield, 15 So. 3d 908 (Fla. 4th DCA 2009), which is also a wrongful death case, a child was allowed to make a claim as a survivor, although the child was born during the mother’s lawful, intact marriage to a different man, not the decedent. In Daniels, the husband’s name was not placed on the child’s birth certificate, although the statute required it, and the decedent voluntarily paid modest but regular child support for the child during his lifetime. The Daniels court defined “out of wedlock” to mean that the father and mother of the child were not married to each other and held that a child born out of wedlock may be a “survivor” under the Wrongful Death Act if the father recognized a responsibility for the child’s support even without a legal determination of paternity.⁶⁹

Conclusion

Whether a man may be recognized as a father to a child in Florida is often unrelated to issues of biology and genetics. It will often depend on the reason for the establishment of paternity. It will be easier to establish paternity under Ch. 39 than Ch. 63 because of the different purposes of those statutes. In addition, certain statutes, such as the intestacy statute as it applies to children born out of wedlock, are liberally construed in favor of allowing inheritance. The duty of support, having been separated out from the issue of legitimacy, and coupled with the administrative establishment of paternity in child support proceedings, has encouraged de facto dual fathership in Florida at times, whether recognized under the law as such. 

Rather than a simple, single concept of “father,” Florida may be moving toward an understanding of fatherhood as a bundle of rights and duties, which may at times be divided among different men with respect to a single child. This may affect a determination of party status and the right to counsel, the right to notice, and the fundamental liberty interest in the care and custody of children.

¹ E.g., Achumba v. Neustein, 793 So. 2d 1013, 1015 (Fla. 5th D.C.A. 2001); Fernandez v. McKenney, 776 So. 2d 1118, 1121, n. 5 (Fla. 5th D.C.A. 2001).

² See, e.g., Shuler v. Guardian Ad Litem Program, 17 So. 3d 333, 335 (Fla. 5th D.C.A. 2009).

³ Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997).

⁴ HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993); see also Shuler, 17 So. 3d at 333.

⁵ Casbar v. Dicanio, 666 So. 2d 1028, 1029 (Fla. 4th D.C.A. 1996); see also Morris v. Morris, 932 So. 2d 1007, 1008 (Fla. 2006). 

⁶ For convenience and not logic, these are addressed in order of their appearance in the Florida Statutes. Only the most general discussion of the procedural requirements for actions to establish paternity under the various statutes is included in this article.

⁷ Unfortunately, the statute uses the term “father,” potentially adding to, rather than eliminating, ambiguity.

⁸ Fla. Stat. §39.01(60).

⁹ Fla. Stat. §39.503(1).

¹⁰ Fla. Stat. §39.803(8). 

¹¹ Id.; Fla. Stat. §39.503(8). 

¹² Fla. Stat. §§63.062(1)(b)(4), 63.062(2)(b)(2), and 63.062(3)(a). 

¹³ The inquiry is concerning the identical criteria outlined in §39.503(1) and referenced above for determining that a prospective parent is a parent.

¹⁴ Fla. Stat. §63.088(4)(e). 

¹⁵ N.D. v. DCF, 961 So. 2d 1027 (Fla. 3d D.C.A. 2007).

¹⁶ In re S.M., 874 So. 2d 720 (Fla. 2d D.C.A. 2004). 

¹⁷ See B.J.Y. v. M.A., 617 So. 2d 1061 (Fla. 1993).

¹⁸ S.M., 874 So. 2d at 723.

¹⁹ See, e.g., Matter of Adoption of Baby James Doe, 572 So. 2d 986 (Fla. 1st D.C.A. 1990). 

²⁰ S.D. v. A.G., 764 So. 2d 807 (Fla. 2d D.C.A. 2000).

²¹ G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th D.C.A. 1997). 

²² Fernandez v. Fernandez, 857 So. 2d 997 (Fla. 5th D.C.A. 2003).

²³ Privette, 617 So. 2d at 309. 

²⁴ E.g., Casbar v. Dicanio, 666 So. 2d 1028, 1029 (Fla. 4th D.C.A. 1996). 

²⁵ Id. at 1029. 

²⁶ Morris v. Morris, 932 So. 2d 1007, 1008 (Fla. 2006). 

²⁷ Fleming v. Brown, 581 So. 2d 202 (Fla. 5th D.C.A. 1991); MMMA v. Jonely, 677 So. 2d 343 (Fla. 5th D.C.A. 1996).

²⁸ Lefler v. Lefler, 776 So. 2d 319 (Fla. 4th D.C.A. 2001).

²⁹ Id. at 321.

³⁰ Fla. Stat. §742.18 (1996).

³¹ It should be noted that §63.062(1)(b)(3) has been amended, and the amendment may affect the application of some of the older cases. The subparagraph previously said consent was required when “the minor has been established by court proceeding to be his child.” That subparagraph now provides that consent is required when “the minor has been adjudicated by the court to be his child by the date a petition is filed for termination of parental rights.” Older cases which say that a father may have been “established by a court proceeding” through participating in a previous dependency case may not meet the requirement of having “been adjudicated by the court.” See B.B. v. P.J.M., 933 So. 2d 57 (Fla. 1st D.C.A. 2006).

³² Fla. Stat. §63.088(4).

³³ Fla. Stat. §63.054(1).

³⁴ Fla. Stat. §63.062(2). 

³⁵ See, e.g., A.S. v. Gift of Life Adoptions, Inc., 944 So. 2d 380 (Fla. 2d D.C.A. 2006); and O’Bryan v. Doe, 572 So. 2d 986 (Fla. 1st D.C.A. 1990). 

³⁶ Heart of Adoptions, 963 So. 2d at 195.

³⁷ Fla. Stat. §409.2557, et seq.

³⁸ Fla. Stat. §409.256, et seq. 

³⁹ Fla. Stat. §409.2564, et seq. Except as otherwise specified in Ch. 409, in judicial proceedings to establish paternity under Ch. 409, Ch. 742 governs paternity determinations.

⁴⁰ Fla. Stat. §§409.256(8) and (9).

⁴¹ Fla. Stat. §742.011.

⁴² Fla. Stat. §382.013(6)(a).

⁴³ Cf., Fla. Stat. §742.10, which provides that except as provided under Ch. 39 and Ch. 63, “this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.” A child whose mother is married at the child’s birth is not born “out of wedlock.” G.F.C. v. S.G., 686 So. 2d 1382, 1385 (Fla. 5th D.C.A. 1997). 

⁴⁴ Fla. Stat. §742.10(1).

⁴⁵ See Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972). See also Hamilton v. Liberty National Life Ins. Co., 207 So. 2d 472, 476 (Fla. 2d D.C.A. 1968).

⁴⁶ Fla. Stat. §742.091.

⁴⁷ The issue here is not whether he is the biological father, but whether he was the “reputed” father at the time of his marriage to the mother. See, e.g., A.S. v. S.F., 4 So. 3d 774 (Fla. 5th D.C.A. 2009); HRS v. C.M.N., 661 So. 2d 22 (Fla. 2d D.C.A. 1994). 

⁴⁸ A.S., 4 So. 3d at 774.

⁴⁹ Fla. Stat. §742.10(1).

⁵⁰ Fla. Stat. §742.10. (1974).

⁵¹ Fla. Stat. §382.013(2)(c). 

⁵² Fla. Stat. §742.12. Notwithstanding genetics, there is also an irrebuttable presumption in the case of gestational surrogacy of a child born within wedlock who has been conceived by the means of artificial or in vitro insemination, or by means of donated eggs or preembryos, that the child is the child of the husband and wife provided that both of them have consented in writing to the procedure. Fla. Stat. §742.11.

⁵³ Achumba v. Neustein, 793 So. 2d 1013, 1015 (Fla. 5th D.C.A. 2001).

⁵⁴ See Jones v. Crawford, 552 So. 2d 926, 927 (Fla. 1st D.C.A. 1989).

⁵⁵ Privette, 617 So. 2d at 305. 

⁵⁶ Fernandez, 857 So. 2d at 999.

⁵⁷ Fla. Stat. §744.301.

⁵⁸ Stewart v. Walker, 5 So. 3d 746 (Fla. 4th D.C.A. 2009); State v. Earl, 649 So. 2d 297 (Fla. 5th D.C.A. 1995); Stepp v. Stepp, 520 So. 2d 314 (Fla. 2d D.C.A. 1988). 

⁵⁹ Fla. Stat. §732.108(2). Ch. 95 contains statutes of limitations. 

⁶⁰ In re Caldwell’s Estate, 247 So. 2d 1 (Fla. 1971).

⁶¹ In re Estate of Robertson, 520 So. 2d 99 (Fla. 4th D.C.A. 1988); Williams v. Estate of Long, 338 So. 2d 563 (Fla. 1st D.C.A. 1976); In re Estate of Jerrido, 339 So. 2d 237 (Fla. 4th D.C.A. 1976), cert. denied, 346 So. 2d 1249 (Fla. 1977). 

⁶² Williams, 338 So. 2d 563; and Jerrido, 339 So. 2d 237.

⁶³ Robertson, 520 So. 2d at 99.

⁶⁴ Id. at 101-102.

⁶⁵ Fla. Stat. §768.16-768.27 (1999).

⁶⁶ Fla. Stat. §768.18(1), quoted in Achumba, 793 So. 2d at 1014.

⁶⁷ Achumba, 793 So. 2d at 1015-16.

⁶⁸ Id. at 1016, J. Griffin, dissenting.

⁶⁹ Daniels, 15 So. 3d at 912.

Judge Sue Robbins is the family law administrative judge for the Fifth Circuit and presides primarily over dependency, termination of parental rights, and adoption cases in Marion County. She has been a judge since 2000 and a member of The Florida Bar since 1982.[Revised: 02-10-2012]
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