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What are my parental rights as a biological father of a child who was born while the mother was married to another man?

To answer this question briefly, a biological father has no rights to a child born while the mother was married to another man, unless the mother’s husband relinquishes his parental rights through proper procedure. In Florida, the “legal father” of a child is defined as the man to whom the mother is married when the child was born and whose name appears on the birth certificate. In the case of Slowinski v. Sweeney 38 Fla. L. Weekly D1418a (Fla. 1St DCA 2013), it was undisputed that the child was born within wedlock while the mother was married to another man and that the mother’s husband was listed as the father in the child’s birth certificate. The child resided with the maternal grandmother since birth. Upon the mother’s death, the grandmother, with the legal father’s consent, filed a petition for temporary custody, pursuant to Florida Statute section 751.03, which allows an extended family member to seek temporary custody of a child.

The biological father filed a petition for determinatin of paternity in the same county as the grandmother’s action using evidenced by DNA testing to show that he is the father and that he should have custody of the child. The biological father’s paternity action was ultimately dismissed on appeal because the court considered it a “nonexistant cause of action.” The biological father next filed a motion to intervene in the grandmother’s temporary custody case. After an evidentiary hearing on his motion, the trial court allowed the biological father to intervene in the case, finding that he qualieifed as an “extended family member” because his status as a biological father made him a “relative of a minor child within the third degree by blood or marriage to the parent.”

The 1st DCA reversed the trial court’s ruling, holding that

[the biological father]‘s contribution of DNA, resulting in the birth of this child within an intact marriage – to which he was not a party – does not establish him as an ‘extended family member.’ Section 751.011(2)(a) defines an extended family member as ‘a person who is . . . [a] relative of a minor child within the third degree by blood or marriage to the parent.’ . . . The legislature’s definition did not express any intention to include any person related to the child by blood, but related to the child due to a blood or marriage relationship to the parent.

Because the biological father was not related by blood to either parent and because he was not married to the mother, he did not have any legal interest in the outcome of the action and therefore did not have a right to intervene in the grandmother’s custody case. The court further held that “Florida does not recognize ‘dual fathership.’” In this case, if the legal father had first relinquished his parental rights or if his rights were terminated, then the outcome would have been different.

Whether you are a putative father of a child born out of wedlock and are seeking to establish your parental rights, a biological father of a child born within wedlock and are trying to establish your parental rights, or a legal father of a child born within wedlock and are defending your parental rights, then it is very important to contact an attorney to navigate the legal process as these issues can be very complex.

For more information see Slowinski v. Sweeney 38 Fla. L. Weekly D1418a (Fla. 1St DCA 2013).
Liridona Sinani is an Attorney with Martin Law Firm, P.L., who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples Florida.

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