Distinguishing Legitimacy from Paternity: Has Legitimacy Become a Label Without Substance Under Flo
Recent Florida decisions indicate that paternity is now considered a distinct concept from legitimacy.1 Careful attention to the definitions of the words “legitimacy” and “paternity” is necessary because they are used loosely in the reported decisions. Some courts refer to a “presumption of paternity,”2 or a “presumption [of]. . . lineal descendan[cy]”3 as well as a “presumption of legitimacy.”4 Before the recent opinion of Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), a child born during a marriage was presumed to be legitimate and the Florida Supreme Court had declared this was “one of the strongest rebuttable presumptions known to the law.”5 However, after Daniel, the presumption has become a label given to any child born during a lawful marriage, regardless of his or her paternity. Now “paternity” means the status of being the natural or biological father of a child and “legitimacy” means the status of a child born or conceived during a lawful marriage—whether or not the child received half of his or her genes from the husband.6 The term “legal father,” on the other hand, is the man the law identifies as the father—whether or not he is the biological father.7
In Daniel, the Supreme Court of Florida held that a child’s legitimacy is a separate and distinct issue from his or her paternity. Even recently, courts have used the terms “legitimate” and “paternity” interchangeably8 and have assumed that a child who does not have the husband’s genes is illegitimate. In Daniel, the Supreme Court held a child is legitimate if born during a valid marriage, even if the husband is not the child’s biological father. The Daniel court held that paternity is purely a question of “natural lineage” and “paternity is not contested here” because “the parties have stipulated that Michael Daniel is not Ciara’s natural father, and Mr. Daniel is not asserting any rights he might have had as Ciara’s ‘legal father.’”9 Furthermore, because Mr. Daniel was not the child’s biological father, the court applied the “well settled rule” that “a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted.”10
It appears a child’s legitimacy, like the emperor’s new clothes, is invisible, a form without substance that cannot prevent the exposure of the underlying truth; that is, the paternity of the child. It also appears that legitimacy carries with it no material benefit in that the court held Ciara was not entitled to support from the former husband, even if she is his legitimate child.
Just how invisible and empty the status of legitimacy has become is illustrated by recent cases citing Daniel. In Gantt v. Gantt, 23 Fla. L. Weekly D2031 (Fla. 4th DCA 1998), during the pendency of a dissolution action, the husband asked for blood tests on the six children born during the marriage. The husband sought to avoid paying child support for the children who were not his biological children. The trial court followed the procedure set forth in Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993), and appointed a guardian ad litem to determine the best interests of the children before ordering a genetic test. After the guardian had rendered a report, the trial court held a hearing and denied the husband’s request. The appellate court reversed and ordered blood tests on all six children, ruling that Privette did not apply because Daniel limits the application of Privette to cases in which a “legal father” seeks to maintain his parental rights.11 The appellate court also held that all of the children are legitimate children, because they were born during a lawful marriage, but they are not entitled to support from the husband if their paternity is not established by a genetic test. Privette’s broad language directing trial courts to protect the “best interests of the child” against an “impugning” of their legitimacy by a genetic test which would prove paternity was brushed aside because the “legal father” was not trying to preserve his parental rights. After Daniel, if the legal father asks for a genetic test, Privette does not prevent the request when the legal father is challenging his status as father.
In DeRico v. DeRico, 23 Fla. L. Weekly D1732 (Fla. 5th DCA 1998), the presumption of legitimacy and Privette’s requirement that trial courts must protect a child’s presumed legitimacy by appointing a guardian again did not prevent a determination of biological paternity. In DeRico, after the couple was divorced, genetic testing was conducted on the three children born during the marriage—apparently outside of legal proceedings. The results revealed that two of the three children born during the marriage were not the former husband’s biological children. The former husband then filed a post-judgment petition asking to be relieved of his support obligation for those two children. The trial court, citing Privette, denied the former husband’s petition, finding it was in children’s best interest to “remain legitimate,” thus assuming where there is no paternity there is no legitimacy. The appellate court reversed, however, noting the trial court did not have the benefit of Daniel. Following Daniel the appellate court separated legitimacy and paternity into two distinct issues noting:
[T]here is no issue as to paternity, DeRico is not claiming any rights as “legal father” of the two children, and, as in Daniel, the children’s status as legitimate is not subject to dispute. Accordingly, Privette does not govern this case; Daniel does. There is no need for the appointment of a guardian ad litem as DeRico has no legal duty to provide support for children he neither biologically fathered, adopted, nor contracted to care for.
The dissent in DeRico challenged the majority’s disregard of the doctrine of res judicata. A determination of paternity cannot be changed without a finding of fraud once a final judgment of paternity or dissolution has been entered.12 The dissent pointed out the trial court determined the wife had not committed fraud because the trial court found the wife believed the children were the husband’s until “she learned the DNA results.”
Is Privette Still Valid?
Privette’s directives to protect a child’s legitimacy are not entirely defunct. In another recent decision, Privette was invoked to prevent the determination of paternity through genetic testing. In Contino v. Estate of Contino, 23 Fla. L. Weekly D1870 (Fla. 3d DCA 1998), the children of a deceased father questioned whether the youngest son, now age 32, had the father’s genes. They claimed that if he did not, he was not an heir and, therefore, not entitled to an intestate share. During their parents’ divorce almost 20 years before the father died, the mother told their father that the youngest son, Daniel, was not the father’s biological child. The parents also signed a separation agreement which provided “the Wife waives support moneys from the Husband for the care and maintenance of the minor child Daniel for the reason that the Husband is not the natural father of said minor child, Daniel.” However, the evidence never established that the deceased ever said he did not believe Daniel was his son, and Daniel testified he believed the deceased was his father. The trial court determined that Daniel was an heir and denied the other children’s motion for a blood test. The appellate court affirmed, citing Privette, and declared that in “the instant case, Daniel’s best interests cannot be served by being declared illegitimate regardless of his age.” Again, this court, like so many other courts and like the Contino siblings, assumed that illegitimacy follows from a finding of no paternity and that a child who is not engendered by the deceased father is not an heir or a lineal descendant.
The Contino court further stated that F.S. §742.12(1) (1997), which allows a court on its own motion to order a genetic test “in any proceeding to establish paternity,” is limited by §742.10 to cases in which a child is “born out of wedlock,” and the court said Daniel was born during a marriage so the “‘presumption of paternity’ ( sic ). . . has not been overcome and scientific testing is not available by statute to determine paternity.” This, of course, begs the question: What does “out of wedlock” mean? Is a child born during a marriage who is not fathered by the husband born “in wedlock”? A cuckold, perhaps, might believe such a child is born “out of wedlock.” Daniel says such a child is legitimate but that his or her paternity is another question. Nevertheless, the majority in Contino indicates that legitimacy follows from paternity; there is a “presumption of paternity,” and this presumption cannot be challenged by evidence to the contrary, that is, a genetic test, without complying with the requirements of Privette, even though the legal father, Mr. Contino, is deceased, the child is 32 years old, and, further, that §742.10 does not permit a court to order a genetic test for a child born during a marriage.
The dissent in Contino cited Daniel and indicated the “presumption that Daniel is a lineal descendant ( sic ) is a rebuttable one.” The dissent also pointed out that because the presumption is rebuttable, the case should be decided by the most reliable evidence available, that is, genetic testing. The dissent also argued the protections required by Privette to preserve a child’s best interests did not apply to a 32-year-old child of a deceased legal father.
Apparently the dissenting judge in Contino, like many other judges, assumed a child who does not have any genes from the husband is not a legitimate child and is not an heir or a lineal descendant. In contrast, Daniel considers paternity a separate question from legitimacy and denotes any child born in a lawful marriage as legitimate. However, what neither Daniel nor Contino answer is whether a legitimate child, as defined by Daniel, is a lineal descendant or heir even if he or she was not engendered by the husband or whether paternity alone determines lineal descendancy and the right to inherit.
One point that is clear after Daniel is that the appointment of a guardian to protect a child’s interests before ordering a genetic test, as required by Privette, applies only in cases in which the legal father does not want a genetic testing conducted.13 Perhaps the unspoken rationale of the majority in Contino is that because the deceased legal father never renounced his youngest son during his lifetime, Privette has to be followed. Factually in Privette, the Department of Health and Rehabilitative Services filed suit for paternity and child support against a man identified by the mother as the father of her child. The respondent denied he was the father and raised as a defense the fact that the mother was married to another man when the child was born. The Supreme Court ruled that in a case in which the rights of the “legal father,” that is, the husband who was not a party to the suit, will be affected by a blood test,
therefore, a guardian ad litem must be appointed to represent the child and the court must weigh the best interests of the child as well as the parental rights of the legal father before a genetic test can be ordered.
The policy behind the Privette decision is consistent with decisions that hold that determination of a child’s legal father is not simply a question of genetics. If there is a beneficial relationship between a legal father and a child that should be preserved, a quest for biological certainty should be denied if the blood test will interfere with that relationship. The celebrated case of Mays v. Twigg, 543 So. 2d 241 (Fla. 2d DCA 1989), in which two girls were switched at birth and the court left teenaged Kimberly Mays in the custody of the man who raised her, is entirely consistent with this policy, as are cases of estoppel against a mother or a father to deny the legal father’s status.14 Likewise, the two recent decisions of I.A. v. H.H., 23 Fla. L. Weekly D1063 (Fla. 2d DCA 1998), and G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th DCA 1997), holding that a man claiming to be the biological father of a child born to a woman who is married to another man has no cause of action for paternity and no paternal rights, are also consistent with the policy behind Privette. An outsider to a marriage should not be allowed to disturb the family with a paternity claim against one of the children.15
Status of Legal Fatherhood
Legal fatherhood is more than biology and a husband can protect his status as a legal father—if he so desires. However, Daniel allows a husband to challenge that status if he wants to avoid an obligation for child support. The consideration formerly required by Privette of the best interests of the child to remain legitimate and to prevent a genetic test that might “impugn” a child’s legitimacy has been eliminated by Daniel’s declaration that any child born during a lawful marriage is legitimate. A threshold question that remains is whether the husband has any intention of seeking a genetic test, now or in the future, thus indicating he does not want to preserve the parent-child relationship.
Other questions also remain unanswered after Daniel. Under Florida law, marriage is not the only way a man acquires the status of a legal father. Many men have attained this status by being served with a complaint alleging paternity and allowing a default and a final judgment to be entered against them. With remarkable frequency, trial courts order post-judgment genetic tests for these procedural fathers, and with remarkable frequency the appellate courts reverse, citing the doctrine of res judicata.16 After Daniel’s declaration that a man has no obligation to support a child that is not his biological child, are these legal fathers entitled to a post-judgment genetic test? Are husbands the only legal fathers who can challenge their status? While it is not clear whether the genetic testing in DeRico was done with court approval, the evidence was considered by the court in a post-judgment action, and the court set aside not only the children’s support, but also the father’s parental rights. If men declared to be fathers by default judgments in paternity actions are not also entitled to post-judgment blood tests, is this a denial of equal protection?
What about fathers by estoppel? Is it fair to allow a legal father to evade his support obligation or a mother to deprive a legal father and a child of a long standing, beneficial relationship? Daniel ’s rule that a man does not have to support a child he did not engender, adopt, or contract to support does not state an exception for fatherhood by estoppel—yet this is a principle of long standing that has been applied against both the mother and the legal father.17 The Supreme Court in Daniel did say “the courts must be ever vigilant to protect our children” which suggests that fatherhood by estoppel is still a defense to a request for a genetic test.
A Unique Legal Status
The most significant issue after Daniel is discerning the consequences of this new legal status where a child who is not a husband’s biological child nevertheless is his legitimate child. Such a husband has no obligation to support this child, but does the child remain an heir of the husband strictly because he remains legitimate? Is the child his lineal descendant? What if the blood test had been ordered in Contino and the youngest son was proven not to have the father’s genes? Daniel Contino still would have been legitimate under the rule in Daniel because he was born during the marriage. Does such a nonbiological, legitimate child take a lineal descendant’s share of an intestate estate? If child support does not accompany legitimacy during a father’s lifetime, then under Daniel, the descent of property upon the death of the legal father should not follow legitimacy either. The descent of property, it would seem, should follow paternity, as child support does during the biological father’s lifetime. However, now that paternity and legitimacy are “separate and distinct concepts,”18 this is not clear.
Why the Supreme Court and Second District in Daniel created a distinction between paternity and legitimacy is perhaps the most interesting question. The creation of a new legal status which maintains “legitimacy” but removes “parentage” for children who are born during wedlock but are not the biological offspring of the husband, was not necessary for the result achieved in Daniel —the limitation of Privette to its facts, and a ruling that a man does not have to support a child he did not engender, adopt, or contract to support. These rulings follow naturally from prior law. The declaration that illegitimacy does not follow from a finding of nonpaternity is an odd development because, generally speaking, a presumption is a substitute for proof, providing evidence where there is none. Where there is proof to the contrary, such as a genetic test, the presumption is rebutted and should vanish.
It is apparent from Daniel that the appellate court and Supreme Court made this distinction to reconcile the cases holding that a husband does not have to support a child he did not engender, adopt, or contract to support with Privette’s requirement that the child’s interest in preserving his or her legitimacy must be protected by the appointment of a guardian and a hearing before a genetic test can be ordered. Why not simply limit Privette’s procedural requirements to cases in which the legal father resists a blood test, as the courts did in Daniel, and affirm the common sense assumption that illegitimacy follows a finding of no paternity, unless there is an estoppel or a beneficial relationship that should be preserved? Such a rule would be consistent with traditional rules of evidence and common sense notions that a child not engendered by a husband is illegitimate and born “out of wedlock.”
Under present law, the formerly rebuttable presumption of legitimacy has become an irrebuttable conclusion, a label attached to every child born or conceived during a lawful marriage. The conclusion is irrebuttable because it is difficult to imagine any circumstance or evidence by which a child born or conceived during a lawful marriage would ever be declared illegitimate. Paternity, being a “separate and distinct” concept, is now irrelevant to a determination of legitimacy. This declaration in Daniel has directed family law, probate and real estate law down a path the end of which is not clear.
1 Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), affirming Daniel v. Daniel, 681 So. 2d 849 (Fla. 2d D.C.A. 1996); DeRico v. DeRico, 23 Fla. L.
Weekly D1732 (Fla. 5th D.C.A. 1998); Gantt v. Gantt, 23 Fla. L. Weekly D2031 (Fla. 4th D.C.A. 1998).
2 Contino v. Estate of Contino, 23 Fla. L. Weekly D1870, D1871 (Fla. 3d D.C.A. 1998).
3 Id. at D1872.
4 Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (1944): “Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized. . . . The rule is well established in this country that the husband may make the attack, but in so doing, he must overcome the strong presumption of legitimacy by. . . proof. . . sufficiently strong to clearly remove the presumption of legitimacy. The evidence must do more than cast a strong suspicion or grave doubt on the paternity of the child.” Id. at 873–874 and 163–164.
6 Daniel, 695 So. 2d 1253.
7 See, e.g., Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993); Daniel, 695 So. 2d 1253.
8 See, e.g., Privette, 617 So. 2d 305, in which the court said “the child’s best interests will be better served even if the genetic test later proves the child’s factual illegitimacy,” thus indicating the term “illegitimacy” is used to mean “does not have the husband’s genes.” See also Long v. Long, 23 Fla. L. Weekly D1961 (Fla. 2d D.C.A. 1998), in which the court said “[n]o evidence was offered as to the child’s paternity. . . the child is entitled to the benefit of the presumption of legitimacy. . . . ” But this assumes that if a child does not share a man’s genes, he or she cannot be a legitimate child of that man. The Florida Supreme Court indicated otherwise in Daniel, 695 So. 2d 1253.
9 Daniel, 695 So. 2d at 1255.
10 Id. at 1254 citing Albert v. Albert, 415 So. 2d 818 (Fla. 2d D.C.A. 1982); Portunondo v. Portunondo, 570 So. 2d 1338 (Fla. 3d D.C.A. 1990); Swain v. Swain, 567 So. 2d 1058 (Fla. 5th D.C.A. 1990); Bostwick v. Bostwick, 346 So. 2d 150 (Fla. 1st D.C.A. 1977); Taylor v. Taylor, 279 So. 2d 364 (Fla. 4th D.C.A. 1973).
11 Privette, 617 So. 2d 305.
12 Cf. Dept. of Rev. o/b/o Moseley v. Kunhardt, 23 Fla. L. Weekly D1327 (Fla. 3d D.C.A. 1998); Dept. of Revenue o/b/o Freckleton v. Goulbourne, 648 So. 2d 856 (Fla. 4th D.C.A. 1995) (a paternity order is res judicata on the issue of paternity and relitigation of paternity issues is improper in connection with a post-judgment motion for contempt for failure to pay child support); Dept. of HRS v. Day, 615 So. 2d 176 (Fla. 2d D.C.A. 1993); Miller v. Cowart, 546 So. 2d 768 (Fla. 2d D.C.A. 1989); Dept. of HRS v. Chambers, 472 So. 2d 1358 (Fla. 2d D.C.A. 1985); Johnson v. Johnson, 395 So. 2d 640 (Fla. 2d D.C.A. 1981); and Dept. of HRS v. Wright, 498 So. 2d 1008 (Fla. 2d D.C.A. 1986) (in which a final judgment of dissolution entered nine years before was res judicata on the issue of paternity even though the former wife filed an affidavit stating another man was the biological father).
13 See, e.g., Gantt, 23 Fla. L. Weekly D2031: “The trial court incorrectly applied the case of [ Privette ]. The Florida Supreme Court has limited Privette to instances where a “‘legal father’ also faces the threat of losing parental rights which he seeks to maintain,” citing Daniel, 695 So. 2d at 1255.
14 See, e.g., White v. White, 23 Fla. L. Weekly D1137 (Fla. 1st D.C.A. 1998) (in which the husband was estopped to deny paternity); Benac v. Bree, 590 So. 2d 536 (Fla. 2d D.C.A. 1991) (in which the father was listed on the child’s birth certificate as the father and had supported the child and the father was allowed to raise estoppel against the mother when she requested that he take a blood test); Alchin v. Alchin, 667 So. 2d 477 (Fla. 2d D.C.A. 1996) (in which the wife’s boyfriend intervened in a dissolution action to claim that a child born of the marriage was his biological child and the court held that Privette required the court to appoint a guardian before deciding whether the wife should be estopped to deny the husband is the child’s legal father or whether the boyfriend’s claim should be dismissed); T.D.D. v. J.J.D.D., 453 So. 2d 856 (Fla. 4th D.C.A. 1984) (in which the court allowed a husband to raise estoppel against a wife who attempted, during a dissolution proceeding, to challenge the paternity of her child because she had previously taken the position that the former husband was the father of the child).
15 Which immediately suggests the title of a country song: “If You Fool With a Married Woman the Child Ain’t Yours,” although the exceptions give rise to subtitles which prove a judge and a lawyer can’t write a country song: “But If The Couple Divorces and The Husband Asks For a Blood Test and Successfully Challenges Paternity and No Estoppel Applies and If The Mother or the Department of Revenue Sue You For Paternity, Then The Child Might Be Yours.”
16 See, e.g., Miller v. Cowart, 546 So. 2d 768 (Fla. 2d D.C.A. 1989); Dept. of HRS v. Opel, 620 So. 2d 191 (Fla. 2d D.C.A. 1993); Dept. of HRS v. Chambers, 472 So. 2d 1358 (Fla. 2d D.C.A. 1985); Dept. of Rev. v. Simms, 705 So. 2d 116 (Fla. 2d D.C.A. 1998).
17 See supra note 14.
18 Daniel v. Daniel, 681 So. 2d 849, 852 (Fla. 2d D.C.A. 1996).
Judge R. Thomas Corbin presently presides over family law and domestic violence cases for the 20th Judicial Circuit in Lee County. He has been a circuit judge since January 1994, and was a general practitioner from 1974 to 1993, handling commercial litigation, probate, real estate, and commercial transactions. Judge Corbin graduated from the University of North Carolina at Chapel Hill, and received his law degree from the University of Florida.
Rana Holz is a partner in the law firm of Rubinstein & Holz, P.A., in Ft. Myers. She practices exclusively in the area of family law and related appeals. Ms. Holz graduated from the University of Florida and received her law degree from Stetson University College of Law. She is a co-author of Recent Decisions with Alan Rubinstein and assistant editor of The Family Law Commentator.
This column is submitted on behalf of the Family Law Section, Jane L. Estreicher, chair, and Sharon O. Taylor, editor.