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.”