Developments in Paternity Actions: Biological Fathers Overcoming the Presumption of Legitimacy


Attorney, Michel L. Watson, Esq.


Children born to unwed parents, although once taboo, is now a normal part of today’s family composition. Fathers of children born out of wedlock have no legal rights upon the birth of the child. Fathers must file a paternity suit with the court to establish their parental rights. Courts must address several issues, both statutory and constitutional when a biological father wants to establish is parental rights, especially when the mother is married to another man or when the legal father has been established.  It all starts with the filing of a Petition to Establish Paternity.


Currently, Florida Statute §742.011 permits any man who has reason to believe he is the father of a child, a pregnant woman, the child, or any woman with a minor child to file a paternity case, however, is limited to “when paternity has not (already) been established by law or otherwise.”

Developments in paternity testing and the accuracy of confirming biological fathers without court orders has significantly changed the establishment of paternity, undermining the state’s goal of legitimacy and shifting focus toward the best interests of the child.  DNA testing also allowed legal fathers to escape the state-imposed burdens of supporting another man’s child.

Unmarried biological fathers can register to preserve their right to notice of adoption of the child by registering with Florida’s Putative Father Registry , but will still need to file a paternity suit.


Until the most recent case Simmonds v. Perkins , cases in Florida had long held that children born to an intact marriage are presumed to be children of the intact marriage, resulting in the husband being deemed the legal father, receiving all legal parental rights to the child. Thus, preserving the state’s goal of legitimacy. In turn, the biological Father’s rights were ignored, and actions presented by married Mothers seeking to establish paternity as to the biological Father were dismissed.

The Simmonds case changed the landscape for fathers seeking to establish paternity. Now, a biological father may rebut the presumption of paternity (legitimacy) belonging to a husband or legal father when the father has “manifested a substantial and continuing concern for the welfare of the child” and when there is a “clear and compelling reason, based primarily on the child’s best interests.”

The Simmonds case discounts the legal presumption of legitimacy and creates a path for biological fathers, who have parented the child and have acted in the manifest best interests of the child, to establish their parental rights over the objection of mothers and presumed fathers. Being the biological father is not enough. Fathers seeking to overcome the presumption of paternity need to develop a substantial and ongoing relationship with the child and support the child’s needs.

The process of establishing Paternity can be complex. Contact Michel Watson, Esq. to help you navigate the paternity process and get your parental rights!