The presumptions of Privette: have they perished with the coming of Daniel and disestablishment of paternity?

AuthorSavard, Susan W.
PositionFlorida

The Florida Supreme Court, in Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305, 307 (Fla. 1993), and again much more recently in Parker v. Parker, 950 So. 2d 388, 394 (Fla. 2007), has interpreted the due process clause of Fla. Const. art. 1, [section]9 such that once children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests. The presumption of legitimacy, although rebuttable, is one of the highest presumptions at law. Many courts across the nation have held that the presumption is so weighty that it can defeat even the claim of a man proven beyond all doubt to be the biological father. (1) It is based on the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child. (2) "This policy is a guiding principle that must inform every action of the courts in this sensitive legal area." (3) Should it matter whether the presumption of legitimacy is challenged by the legal father, the biological father, or the mother of the child? Apparently, it does. Should the burden to overcome the presumption be different depending upon who is challenging it? Apparently, it is.

In addition to addressing the issue of the presumption of legitimacy, Privette further enunciated the standard for granting a request for DNA blood testing to determine if the legal father is the biological father of a minor child. Only after a guardian ad litem has been appointed and the court has heard the argument of the parties, (including the legal father if he wishes to appear), and a finding that the child's best interests will be better served even if the blood test later proves the child's factual illegitimacy, may the court then enter an order for DNA blood testing. (4) The burden is one of clear and convincing evidence to be proven by the one seeking the testing. (5)

This article addresses the issue of a child born during a valid marriage who is not the biological child of the husband, potential dissolution of that marriage, and the legal rights of those involved.

The Daniel Decision

In 1997, the Florida Supreme Court in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), announced a distinction between paternity (or natural lineage) and legitimacy. Daniel holds that a person has no legal duty to provide support for a minor child who is neither his natural nor adopted child, and for whose care and support he has not contracted following dissolution of marriage. (6) In Daniel, both parties stipulated that the child born of the marriage was not the husband's biological child. The trial court, finding that the husband was the legal father, imposed a child support obligation at the time of final judgment. The Florida Supreme Court ruled that just as a child's natural lineage was unaffected by his or her mother's marriage to a person other than the child's natural father, the child's legitimacy would similarly not be affected by a determination of paternity with someone other than her husband (and orders of support following such determination). (7) This distinction is difficult to reconcile, especially when a bastard, by definition, is

an illegitimate child; children who are not born either in lawful wedlock or within a competent time after its termination; a child of a married woman conceived with one who is not the husband of the mother; a child born out of lawful matrimony or born to a married woman under conditions where the presumption of legitimacy is not conclusive and has been rebutted. (8)

In addition, the Florida Supreme Court in Daniel narrowed the application of Privette to "those instances where a child faces the threat of being declared illegitimate, and the 'legal father' also faces the threat of losing parental rights which he seeks to maintain," and the matter involves contested paternity with the request for blood tests or similar genetic testing. (9) Having found that legitimacy is distinguishable from paternity, under the Daniel holding, it is unlikely that there are any circumstances under which a child born of a marriage can be deemed illegitimate. Additionally, as a biological father has no standing to bring an action seeking a determination of paternity for a child born during an intact or valid but dissolved marriage, (10) there are few, if any, circumstances in which a legal father (husband or former husband) faces the threat of losing parental rights which he seeks to maintain. The prevailing law in Florida is that the putative father has no right to seek to establish paternity of a child born into an intact marriage when the mother and her husband object. (11) The presumptions of Privette are...

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