       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           CONNOR PERKINS,
                              Appellant,

                                     v.

                         TRENEKA SIMMONDS,
                              Appellee.

                              No. 4D16-3502

                             [October 4, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Arthur M. Birken, Judge; L.T. Case No. 15-10975 (35).

   Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellant.

  Victor H. Waite of Law Office of Victor H. Waite, P.A., Hollywood, for
appellee.

BUCHANAN, LAURIE E., Associate Judge.

    Appellant, Connor Perkins, the biological father of C.P. (“the Child”),
appeals the trial court’s order dismissing his Petition to Establish
Paternity with prejudice on the grounds that the Child was born into an
intact marriage of the mother to another man. Appellant argues that the
court erred in finding that he lacked standing to bring the petition based
on the facts of the case. Alternatively, he asserts that section 742.011 of
the Florida Statutes (2015) violates the constitutional guarantee to equal
protection. We decline to address Appellant’s equal protection argument
at this juncture, but find merit to his standing argument. Therefore, we
reverse and remand for further proceedings as outlined below.

    In February of 2013, Appellee, Treneka Simmonds (“the Mother”),
 gave birth to the Child. The Mother declined to provide paternal
 information on the Child’s birth certificate, but the Child was given
 Appellant’s last name. DNA tests confirm that Appellant is the Child’s
 biological father.

    In September of 2015, Appellant filed a Petition to Establish
 Paternity, Child Support and for Other Relief. The Mother moved to
 dismiss Appellant’s petition, alleging that Appellant did not have
 standing to pursue paternity because the Mother was married to
 Appellee, Shaquan Ferguson (“Husband”), before she gave birth to the
 Child and the marriage remained intact. Appellant responded that he
 was not aware that the Mother was married.

     The court conducted an evidentiary hearing on the Mother’s motion
 to dismiss wherein the Mother, Husband, and Appellant testified. Briefly
 stated, Appellant testified that he was a fixture in the Child’s life from
 birth on. The Mother, in turn, testified that Appellant was an absentee
 father and her Husband testified that he raised the Child as his own.
 Considering the evidence presented at the hearing, the court issued an
 order wherein it found the Mother’s testimony “generally not credible.”
 The court also rejected the testimony of Husband, noting that the Mother
 and Husband lived in different states. The court gave credence to
 Appellant’s testimony, finding that Appellant was at the hospital when
 the Child was born and raised the Child with the Mother. Specifically,
 the court found that Appellant took the Child to doctor’s appointments,
 enrolled the Child in daycare, voluntarily paid child support, and that
 the Child calls Appellant “daddy.” The court also found that Appellant
 had no idea that there was an intact marriage when the Child was born
 as the Mother told Appellant she married for immigration purposes and
 was getting a divorce.

   Despite the foregoing findings, the Court concluded:

      The facts strongly favor the [Appellant] having some
      involvement in the child’s life. However, the law requires this
      Court to do something else. Perhaps there needs to be some
      movement in the law. However, it needs to come from a higher
      Court or from the Legislature. The function of this Court is to
      follow and uphold the law as this Court understands it.

      “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.” Johnson v. Ruby, 771 So.
      2d 1275, 1275−76 (Fla. 4th DCA 2000). No exceptions fall
      under the facts of this case as presented to the court.

Appellant argues that the court’s ultimate legal conclusion was incorrect,
and we agree.

   Chapter 742 of the Florida Statutes governs the determination of
parentage. Section 742.011 provides the following basis for the court’s

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jurisdiction over the parties:

       Any woman who is pregnant or has a child, any man who has
       reason to believe that he is the father of a child, or any child
       may bring proceedings in the circuit court, in chancery, to
       determine the paternity of the child when paternity has not
       been established by law or otherwise.

 § 742.011, Fla. Stat. (2015) (emphasis added).

   The law presumes that the husband of the biological mother of a child
is the child’s legal father. J.T.J. v. N.H., 84 So. 3d 1176, 1179 (Fla. 4th
DCA 2012). “‘This presumption is one of the strongest rebuttable
presumptions known to law and is based on the child’s interest in
legitimacy and the public policy of protecting the welfare of the child.’”
Id. (quoting G.T. v. Adoption of A.E.T., 725 So. 2d 404, 410 (Fla. 4th DCA
1999)). Because of the strength of this presumption, many courts have
held that “a putative father has no right to seek to establish paternity of
a child who was born into an intact marriage when the married woman
and her husband object.” Johnson v. Ruby, 771 So. 2d 1275, 1275−76
(Fla. 4th DCA 2000); see also Tijerino v. Estralla, 843 So. 2d 984, 985
(Fla. 3d DCA 2003). The facts in Johnson did not call for an inquiry into
the relationship between the child and the putative father, because in
Johnson the child was not yet born at the time the putative father filed
his petition to establish paternity. Id. The First District has gone so far
as to suggest that the presumption of legitimacy may never be rebutted.
Slowinski v. Sweeney, 64 So. 3d 128, 129 (Fla. 1st DCA 2011). 1 This
Court, however, has reaffirmed that the presumption of legitimacy
afforded to a child born within an intact marriage is exactly that: a
presumption. Thus, the presumption of legitimacy may be rebutted in

   1  The Slowinski court based its decision on the Fifth District’s decision in
 G.F.C. v. S.G., 686 So. 2d 1382, 1385 (Fla. 5th DCA 1997), wherein the court
 held that chapter 742 does not allow a man “who declares himself to be the
 father of a child born to an intact marriage” to sue for paternity. However,
 the G.F.C. court recognized that there may be an exception to this rule in
 “circumstances where there is a claim of a developed relationship between
 the putative father and the child.” Id. In a footnote, the Slowinski court
 noted the potential exception, but outright rejected it, writing it off as a
 “hypothetical” which “has largely been discussed in passing, and often in a
 denigrating manner.” 64 So. 3d at 130 n.1. The Slowinksi court apparently
 failed to note the holding of this Court in Lander v. Smith, 906 So. 2d 1130,
 1134 (Fla. 4th DCA 2005), nor did it realize that post-G.F.C., the Fifth District
 has not only recognized, but applied the exception.                Fernandez v.
 Fernandez, 857 So. 2d 997, 999 (Fla. 5th DCA 2003).

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certain, rare circumstances.

 In the most recent opinion on the subject, M.L. v. Department of
Children and Families, this Court wrote “to clarify” that:

     [W]hile a biological father who is a stranger to an existing
     marriage into which a child is born has extremely limited
     rights, his ability to establish his paternity is not left entirely
     to the husband’s “whim.” . . . [A] biological father may seek to
     establish his paternity, even when both the mother and
     husband object, if “common sense and reason are outraged”
     by applying the marital presumption to bar such an action.

42 Fla. L. Weekly D999 (Fla. 4th DCA May 3, 2017), (internal citations
omitted).

    An example of when the application of the presumption of legitimacy
outraged common sense and logic can be found in Lander v. Smith, 906
So. 2d 1130 (Fla. 4th DCA 2005). There, the biological father of a child
conceived with an otherwise married woman petitioned to establish his
paternity of the child. Id. at 1131. At the time she conceived the child,
the mother was separated from her husband and told the biological
father that she was getting a divorce. Id. at 1132. It was uncontested
that the biological father was indeed the child’s father, and the child was
given the biological father’s last name. Id. at 1131. Additionally, the
biological father alleged that he “provided financial support to [the
mother] before [the child’s] birth, provided financial support to pay for
the expenses of [the child’s] birth and his care, paid child support to [the
mother], and developed a relationship with [the child].” Id. Nonetheless,
the mother and her husband contested the biological father’s petition,
and the trial court dismissed the petition, ruling that the biological
father lacked standing to pursue paternity because of the presumption
of legitimacy afforded to children born during an intact marriage. Id. at
1132.

   We reversed the court’s ruling on appeal, holding that “the
presumption of legitimacy [did] not bar a paternity action under the
factual circumstances presented” and remanded for additional
proceedings for the court to consider the best interests of the child. Id.
at 1135. In doing so, we reasoned:

     This case rests at the intersection of paternity and legitimacy
     where there exists a natural tension between reason and
     emotion, law and social consciousness, and the presumption

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      of legitimacy and the best interests of a child in a modern
      world characterized by family structures of endless varieties
      and mores in constant flux.              We are mindful of the
      presumption of legitimacy and the importance that it serves
      for children who would otherwise face uncertainty in their
      family lives. [The child] is not one of these children. For [the
      child], it cannot be said that strictly applying the presumption
      of legitimacy is irrefutably in his best interests where it is
      uncontested that [the petitioner] is his biological father and
      where [the petitioner] is willing to assume that role in [the
      child’s] life. This is especially so in light of the lack of evidence
      that [the husband] has played any paternal role in [the child’s]
      life. For [the child] it is likely that strict adherence to the
      presumption of legitimacy could operate to thrust upon him
      the very uncertainty that it is intended to avoid.

 Id. at 1134.

   This case is on all fours with Lander. Like in Lander, it is uncontested
that Appellant is the biological father and that the Child was given
Appellant’s last name. Also like in Lander, Appellant alleged that the
Mother represented she was getting or was divorced when she had the
Child.    Additionally, Appellant also established that he financially
supported the Child. Most importantly, as was the case in Lander,
Appellant’s evidence established that Appellant had a strong parent/child
relationship with the Child and was committed to continuing the
relationship. Under these circumstances, it is not in the Child’s best
interest to apply the presumption of legitimacy at the cost of the Child’s
established relationship with her father. Accordingly, consistent with
Lander, we reverse the trial court’s order of dismissal of Appellant’s
paternity action and remand for further proceedings.

   Reversed and remanded.

WARNER and LEVINE, JJ., concur.

                             *         *          *

   Not final until disposition of timely filed motion for rehearing.




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