Parental Rights to Children Born Out of Extramarital Affairs or to Unmarried Parents

What happens when a mother is married but gets pregnant by another man?

The Florida Supreme Court is currently considering if the biological father of a 5-year old girl has any legal rights to his biological daughter. The child’s mother was married to another man at the time the child was born. In that case, no one is disputing that the husband is not the child’s biological father. Whether the biological father has any rights to his daughter might seem like an obvious thing to some people. But according to Florida common law, a child born into a marriage is the presumed legal child of the husband, regardless of whom is the biological father. The effect of this presumption is that a biological father has no visitation rights or right to make decisions concerning his biological child. Under certain circumstances, some Florida courts, as the Fourth District Court of Appeal held in Perkins v. Simmonds, 227 So. 3d 646 (Fla. 4th DCA 2017), have carved out an exception to this general rule when it would clearly be against the child’s best interest. For example, the court would consider things such as if the child was given the biological father’s last name, the biological father financially supported the child, and if there is a strong parent/child relationship.

It is now left to the Florida Supreme Court to determine if the exception relied upon in Perkins v. Simmons is valid. The Court held oral arguments on the case in May, but it has not yet issued its opinion. Before the Supreme Court, the biological father’s attorney argued that the child can have three parents, as he is asking the Court to award him visitation rights.

What happens when both parents are unmarried?  

Similar issues can arise to children born to unmarried parents. If both biological parents are unmarried at the time of birth, then all parental rights are with the mother. In this instance, the biological father can petition the court to establish a paternity, a parenting plan, timesharing, and child support. If the father is on the birth certificate, there is a legal presumption he is the child’s father. In some cases, paternity is disputed, and the court will require DNA testing to determine who the child’s biological father is. The biological father should also register with the Putative Father Registry of the Bureau of Vital Statistics. This is a claim for paternity that would prevent, for instance, the legal adoption of the child before paternity has been evaluated by a court.


Therese Felth McKenzie

Your Journey Back to Stability Starts Now.