If your child is born while you and your spouse are married, you both will always be considered the parents of the child, right? Well, not necessarily. LGBTQ families should be aware of their family law rights. And according to Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018), those family law rights may be at risk.
Facts of Simmonds v. Perkins
Simmonds v. Perkins involves a Husband, a Wife, and a Biological Father. While married to Husband, Wife has an affair with Biological Father. Wife gets pregnant from Biological Father. While still married to Husband, Wife gives birth to child.
Now, Biological Father did not know that Wife was married to Husband at the time of the affair, and once Biological Father did learn about the marriage, Wife told him that the marriage was only for “immigration purposes.”
After the child was born, Biological Father would visit the child regularly and paid Wife child support. Eventually, Biological Father filed an action in court to be named the child’s legal father, have all of the rights of a father (including ability to make decisions and right to spend time with the child), and take on the obligation of child support.
Wife files a motion to dismiss the action because the child was born during an intact marriage between her and Husband. Traditionally, that meant that there was a strong legal presumption that Husband was the legal father of the child, and it was very difficult for any third party to challenge this status. Husband would later join as a party and also requested that his rights be respected and the case be dismissed.
The trial court dismissed the case. It did so based on the long tradition that a child born during an intact marriage is considered the legitimate child of that marriage.
But Biological Father appealed to Florida’s Fourth District Court of Appeals. The appellate court acknowledged that the presumption of a child’s legitimacy is one of the strongest presumptions in the law. Ultimately, however, it reversed the trial court’s decision. The Fourth District determined that the presumption of legitimacy could be overcome “if common sense and reason are outraged” by the presumption of legitimacy.
Wife appealed this decision to the Florida Supreme Court. The Supreme Court ultimately affirmed the Fourth District’s decision. It went on to say that “there must be clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy…”
How this Affects LGBTQ Families
Many families believe that if a child is born during an intact marriage, or if both parents are on the birth certificate, then both parents’ rights are protected. As Simmonds v. Perkins shows, this simply is not correct. Female same-sex spouses are especially vulnerable to an attack on the presumption of legitimacy because there will always be a biological father out there.
Though the facts of Simmonds v. Perkins are somewhat extreme, it does open the door wider to a third party attacking your parental rights. To the extent that it deviates from the norm, that the one of the strongest legal presumptions in existence is the legitimacy of a child born during an intact marriage, it erodes the parent-child bond.
Let us consider a scenario. Two women, Jane and Sally, marry one another. Jane and Sally have a close friend, Tom. Jane and Sally ask Tom to provide Jane with genetic material so that Jane can have a baby. Tom obliges and Jane becomes pregnant.
The child is born (again, while Jane and Sally are married). Both Jane and Sally are listed on the child’s birth certificate. Tom, as a close friend of Jane and Sally, remains in the child’s life, sees the child regularly, and even regularly provides gifts to the child.
Jane and Sally have a fight, and they separate. Tom was always closer to Jane, and so he takes her side. Jane asks Tom to file an action for paternity to prove he is the father, and he does. Using the guidance of Simmonds v. Perkins, the judge is asked to rule that Tom should be considered the legal parent of the child, and Sally should not be considered a legal parent.
Unfortunately, family law professionals are seeing more and more of these types of scenarios. And judges are put in a bind on how to rule.
How LGBTQ Families Can Protect Parental Rights
Fortunately, you can take steps to protect your rights.
The single best way that you can protect your rights is through an adoption process. If you and your co-parent are married, then Florida has a streamlined method known as stepparent adoption. Either way, adoption involves not only recognition of both parents’ rights, but the termination of parental rights of those who might later claim rights. Even if your child was conceived by Assisted Reproductive Technology, adoption provides the security to know that no one can challenge your rights.
Adam B. Cordover is co-editor and co-author of an American Bar Association book on Collaborative Family Law. He was a Collaborative Lawyer and Appellate Lawyer for the first same-sex divorce in Florida to challenge both (i) Florida’s so-called Defense of Marriage Act and (ii) Florida’s constitutional amendment banning recognition of same-sex relationships.