LEGITIMACY OF CHILDREN IN
PATERNITY PROCEEDINGS
By K. Dean Kantaras and Kyle J. Benda
Technology is progressing at an ever
increasing pace, but at times, the
law has difficulty keeping pace
with the advances in technology.
The Florida Supreme Court has recently
made an important decision in relation
to father’s rights that allows a biological
father to overcome what is called the
presumption of legitimacy of a child born
to an intact marriage.
In the case, Simmonds v. Perkins, the
Florida Supreme Court established
paternity with a child’s biological father
even though the mother was married to
another man when that child was born.
In this case, the biological father was in a
relationship with the mother for three years
and they had a child, but the mother was
married to another man for immigration
purposes and was still married at the time
of the child’s birth.
The biological father, after the child was
born, did everything a typical father would
do, including signing the birth certificate,
giving the child his last name, and having
the child refer to him as “daddy.” When
the biological father filed a petition to
establish paternity of his child, the mother
filed a motion to dismiss arguing that the
biological father could not be the child’s
legal father because of the common-law
presumption of legitimacy.
The common-law presumption of
legitimacy is that traditionally, courts
preferred to have children be a part
of a family. The justification for the
presumption of legitimacy is to require
that a child born during an intact marriage
is legally the child of the husband in the
marriage. This presumption is one of the
strongest presumptions in law because
it protects the welfare of children by
protecting children from the stigma of
being “illegitimate” children. In Simmonds
LAARWT
K. Dean Kantaras, Esq.
142 TAMPA BAY MAGAZINE | NOVEMBER/DECEMBER 2018
be adjudicated the legal father of the child
and afforded all the rights and privileges
that come with being a parent.
The mother then filed an appeal to the
Florida Supreme Court, which decided to
affirm the decision by the Fourth District
Court of Appeal that the biological father
could be adjudicated the legal father
over the objections of the child’s mother
and her husband. The Supreme Court
also addressed how the improvement
of technology allows us to know, with
scientific certainty, who the biological
father is, which capability was not present
when the presumption of legitimacy was
being developed as legal precedent by
the courts.
The key for a biological father to
overcome the presumption of legitimacy
is to show that he has a substantial and
continuing concern for the welfare of the
child and is involved in the child’s life. In
instances where the biological father make
this continuing effort to be involved with
his child’s life, it allows him to overcome
the presumption of legitimacy so long as
there are clear and compelling reasons
based on the child’s best interests for him
to be involved in the child’s life. 9
EDITOR’S NOTE: K. Dean Kantaras is
the managing partner of K. Dean Kantaras,
P.A., a firm handling cases in family law and
immigration. Mr. Kantaras is board certified
in marital and family law by the Florida Bar.
He has been practicing for over 25 years and
is “A” rated by Martindale-Hubbell. Kyle J.
Benda attended law school at Florida Coastal
School of Law in Jacksonville and joined
the firm in June. Their offices are located at
3531 Alternate 19, Palm Harbor, 34683,
(727) 781-0000 and 1930 East Bay Drive,
Largo, 33771, kantaraslaw.com.
however, the parties had a paternity test
conducted and the biological father was
proven with scientific certainty to be the
father of the child. Even with the positive
results from the DNA test, the law was
clear: a biological father had no right to
even ask a court to be adjudicated a child’s
legal father because of the presumption
of legitimacy.
In the trial court, the court actually
found that it would be in the best interest
of the child for the biological father to be
involved in the child’s life, but that legal
precedent required the court to dismiss
the case with no legal rights given to
the biological father. The appellate court
reversed this decision, creating a new
standard in Florida law relating to the
presumption of legitimacy: that a biological
father may seek to establish paternity over
the objections of the child’s mother and
her husband if it would be outrageous
to apply the presumption of legitimacy
in the facts of the case. In this case, the
appellate court found it to be outrageous
and ruled that the biological father was to