QUASI –
MARITAL CHILDREN
The New Class of Children
According
to the state of Florida a husband is presumed to be the father of a child born
to his wife during the marriage. Is this a fair presumption? What happens if
during a two year marriage the wife has a child with someone that is NOT her
husband?
When
a married woman has a child, the Husband IS ALWAYS the father, unless a court
of pertinent jurisdiction determines otherwise. It’s the law. See Fla. Stat. §. 382.013(2)(a).
Pursuant to this statute, the husband’s name SHALL be placed on the birth
certificate when a married woman has a child. As such, the husband is legally
the father. Prevailing case law also supports that theory. See Lander v. Smith, 906 So. 2d 1130 (Fla. 4th DCA 2005). Even
in situations where the Husband is not listed as the biological father on the
birth certificate, the courts have the final say as to who is the legal father.
This is in accordance with public policy because the courts are charged with
the responsibility of determining parentage, legitimacy and what is for the
best interest of the child. Despite what
people may think, biology is not the most important factor. In fact, biology is
often overridden when it comes to determining what is in the best interest of
the minor child.
With the advance of technology,
specifically DNA testing, there is more evidence contradicting the HUSBAND =
FATHER rule. As such, the Courts created another class of children, called
quasi-marital children. A quasi-marital child is a child born to a married
woman whose husband is not the child's biological father. See S.D. v. A.G., 764 So.
2d 807 (Fla. 2d DCA 2000). It is important to note that even where the husband
presents DNA evidence and is found not to be the biological father, courts may still
find him to be the legal father.
In a majority of cases, the Courts find
that it is in the best interest of the minor child for the Husband to remain as
the legal father and keep the legitimacy of the child intact. The Husband will
have all the rights and responsibilities of a father, i.e. time-sharing and
child support. Courts seem to be protecting the interest of the child and the
family to whom the child was born. The Courts are clearly not taking into
consideration the rights of the biological or putative father. One Court stated
that “as a result of the strong presumption of legitimacy, "[t]he
prevailing law in this state . . . is 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.” Lander, supra at 1133 (emphasis added) (citing Johnson v. Ruby, 771 So. 2d 1275, 1275 (Fla. 4th DCA 2000); Tijerino v. Estrella, 843 So. 2d 984,
985 (Fla. 3d DCA 2003); Bellomo v.
Gagliano, 815 So. 2d 721, 722 (Fla. 5th DCA 2002)).
Under a very narrow set of circumstances,
the Courts have held that the presumption of parentage may be overcome and that
it was in the best interest of the child to find that the biological father was
also the legal parent. For example, in Lander,
supra., the court held that the
presumption of parentage was overcome by the non-access rule when the Wife and
Husband were residing in two different states when the child was conceived AND
the putative father was ready willing and able to step in as the legal father.
The court also took into consideration that there was already a parent-child
bond between the biological father and the minor child. In Daniel v. Daniel, the Courts held that the Husband cannot be held
responsible for child support when the minor child was not his natural or his
adopted child, and he had not contracted for the child’s care and support. See Daniel
v. Daniel, 695 So. 2d 1253, 1255 (Fla. 1997). In these set of facts, the
Husband married the Mother while she was pregnant and knew that he was not the
biological father at the time of the marriage. They were married for less than
a year before filing for divorce. In that time, the Husband never contracted to
support the child and the Courts held that could not be later required to do
so. Despite the Court’s strong
presumptions with married parties and their children, there are a few
situations where the putative father can assert his parental rights over that
of the Husband.
Quasi-Marital children are a recent phenomenon
that the Courts have to tackle. While the system utilized to address
quasi-martial children is not perfect, the Courts continue to address this
unique situation with the best interest of all children in mind.
