Perkins v. Simmonds (Fourth DCA)

Perkins filed a petition to establish paternity, which the trial court dismissed for lack of standing after finding that the child in question was born to an intact marriage.  Perkins appealed and the Fourth DCA reversed.

At hearing, the trial court found that Perkins had been involved in this child’s life since birth and that fairness would dictate that the Perkins be allowed to have continuing involvement in the child’s life.  Nevertheless, the trial judge found that the law prevented a putative father from seeking to establish parental rights over a child born to an intact marriage.

The Fourth DCA observed that a paternity petition can be brought only when paternity has not already been established by law.  It noted further that the law “presumes that the husband of the biological mother of a child is the child’s legal father.”  However, although some districts (namely the First District) have held that this presumption is essentially irrefutable, the Fourth District emphasized that the presumption—while difficult to rebut—is only a presumption.

The Fourth DCA quoted language from its earlier opinion in M.L. v. DCF, wherein it stated that the presumption may be overcome in rare circumstances where “common sense and reason are outraged” by applying the presumption.  Here, where Perkins had been part of the child’s life since birth, had financially supported the child, and where the child had Perkins’ last name, the District Court held that applying the presumption of legitimacy “at the cost of the child’s established relationship with her father” would not be in the child’s best interests.

Nevilile v. McKibben (First DCA)

In a paternity case, the mother challenged several aspects of the trial court’s award.  The First District reversed in part and affirmed in part.

The trial court awarded the father ultimate decision-making authority over “all matters pertaining to the child.”  The District Court reversed, starting from the premise that trial courts must order shared parental responsibility until they find that doing so would be detrimental to the child.  If it is in the child’s best interests, a court may award ultimate decision-making authority to one parent over specific aspects of a child’s welfare.  However, a “blanket, nonspecific award of ultimate responsibility is contrary to the statutory concept of shared parental responsibility.”  Here, the trial court failed to find that any of the mother’s decisions were dangerous to the child; according, the award of blanket ultimate decision-making authority was erroneous.

Next, the trial court awarded the parents 50/50 timesharing.  Mother asserted that the trial court erred by not explicitly making a finding that such schedule was in the child’s best interests.  The District Court disagreed, explaining that a plain reading of the final judgment showed that the court had considered each of the 61.13 statutory “best interest” factors.  Although the trial court did not use the magic words “best interests,” it was not required to do so under the law.  Thus, the District Court affirmed this aspect of the judgment.

Third, the trial court changed the child’s last name to the father’s solely based on the father’s testimony that he wanted to “carry on” his family name and the court’s finding that it would be more “convenient” for the child to have his father’s last name.  The District Court reversed, holding that this reasoning was insufficient to justify a name change over the mother’s objection.

Finally, the District Court held that the trial court erred by failing to address the mother’s claim that the father had not paid his daycare and medical expense obligations in accordance with the trial court’s temporary order.  Noting that the temporary order would no longer be enforceable once the final judgment was entered, the District Court remanded the issue to the trial court for resolution and inclusion in the final judgment.

Frost v. Frost, Jr. (First DCA)

The trial court entered a post-judgment order restricting the former wife to supervised visitation with the child.  The order did not set forth the steps that the former wife needed to take to restore her unsupervised visitation, and the former wife appealed.

The District Court refused to address the merits of the former wife’s argument, finding that she had not properly preserved the issue for review.  Specifically, the former wife failed to explicitly request that the trial court include the steps that she could take within its final order, even after she had received the order and should have noticed that the steps were not included.  The District Court explained that because the former wife had not preserved this issue, and because leaving these steps out of the final order was not “fundamental error,” the Court could not address the former wife’s arguments.