Sunday, May 14, 2006

Case Law Development: Florida Supreme Court Suggests Changes to Paternity Law – Says Man Married to Woman at Child’s Birth is Indispensable Party

The Florida Supreme Court suggested in an opinion this week involving establishment of paternity for child support purposes that the Legislature may want to consider changing a law that keeps some paternity cases from being resolved because an indespensable party could not be found.  The court framed the issue as whether a legal father (i.e., a man married to the child’s mother at the time of birth) is an indispensable party in a paternity action brought by the State to establish that a man other than the legal father is the child’s biological father and, as such, is obligated to provide child support.

The court held that the state’s presumption of legitimacy requires a holding that the legal father is an indispensable party in an action to determine paternity  unless it is conclusively established that the legal father’s rights to the child have been divested by some earlier judgment.  It observed that “A child born during marriage is presumed to be the child of both the husband and wife. This presumption of legitimacy is “one of the strongest rebuttable presumptions known to law. . . . This presumption grants legal fathers an `unmistakable interest’ in paternity actions brought by the Department.”

The court also observed that Florida’s service of process statute does not permit constructive service of process in paternity cases, and there is no express provision in Florida law to authorize constructive service or to ensure that a legal father’s interests are appropriately protected. It said that “Whether the statutes should be modified to address this dilemma is a policy decision for the Legislature to decide.”

(For a  discussion of the presumption of legitimacy and the dilemmas Florida courts confront when faced with children born during marriage but fathered by someone other than the mother’s husband, see Chris W. Alternbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219 (1999)). For a copy of the slip opinion of the Florida Supreme Court in T.D., et. al. v. Florida Department of Children and Families, et. al., please click here (last visited May 14, 2006, reo).

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