[**] Judge, Second District Court of Appeal, Tampa, Florida. LL.M., University of Virginia, 1998; J.D., Harvard University, 1975; B.A., with honors, University of Missouri, Columbia, 1972. This Article is adapted from a thesis submitted by the author in partial fulfillment of the requirements for the degree of Master of Laws in the Judicial Process at the University of Virginia. The author wishes to thank Professor Amy L. Wax. Return to text.

[1] See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 434-37 (Univ. of Chicago Press 1979) (1765). Under strict English common law, parents had to be married prior to the child's birth for the child to be legitimate. See id. at 434. In comparison, a bastard was a child born out of lawful matrimony, even if his parents married subsequent to his birth. See id. at 442. Return to text.

[2] See Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997) (holding that in a dissolution of marriage, a husband has no legal duty to support a child who is not his natural or adopted child); Department of HRS v. Privette, 617 So. 2d 305 (Fla. 1993) (holding that the law presumes a child's best interest is served by upholding legitimacy in a paternity action). Return to text.

[3] 617 So. 2d 305 (Fla. 1993). Return to text.

[4] 695 So. 2d 1253 (Fla. 1997). Return to text.

[5] See Privette, 617 So. 2d at 308. Return to text.

[6] See id. (requiring a showing of good faith and the likelihood of a favorable outcome as a prerequisite to bringing a suit). Return to text.

[7] See id. (suggesting the appointment of a guardian ad litem to ensure the child's best interests). Return to text.

[8] See id. at 309-10 (pointing to a lack of factual development in the record). Return to text.

[9] See infra Part IV.A. Return to text.

[10] CAL. FAM. CODE § 7540 (West 1997). The United States Supreme Court upheld the constitutionality of the California parentage statute in 1989. See Michael H. v. Gerald D., 491 U.S. 110, 131-32 (1989). Return to text.

[11] The evolution of the modern concept of "natural father" could be the subject of a lengthy article. It is undefined in BLACK'S LAW DICTIONARY (6th ed. 1990). The term is used in the Uniform Parentage Act to designate the biological father based on five situations giving rise to the presumption of natural lineage. See UNIF. PARENTAGE ACT § 4, 9B U.L.A. 298-99 (1987).

The term "natural father" has not always been limited to situations where a genetic test has been performed or where it is otherwise virtually certain that the putative father is the biological father. It is often used to describe the marital father after the family unit has been altered in some manner. See, e.g., Department of HRS v. Dougherty, 700 So. 2d 77, 78 (Fla. 2d DCA 1997) (using the term "natural father" to indicate that the biological father was divorced from the mother); Fitts v. Poes, 699 So. 2d 348, 348 (Fla. 5th DCA 1997) (concerning a biological father, referred to as the "natural father," who, after the death of the biological mother, married a woman who is now the adoptive stepmother).

Earlier courts tended to use the term only in reference to the presumed biological father of a bastard child. See, e.g., In re Cotton, 6 F. Cas. 617, 618 (D. Conn. 1843) (holding that a "child born in lawful wedlock has a right to claim of its father protection, support, and education; and these are all duties, in their nature and essence, similar to the duty which the natural father owes his illegitimate child"). Return to text.

[12] Legitimacy, as a legal concept, was initially more important for determining the child's rights of inheritance than the father's parental rights. See 2 SIR FREDERICK POLLOCK & FREDERIC MAITLAND, THE HISTORY OF ENGLISH LAW 260 (Cambridge Univ. Press 2d ed. 1898). Some states attempt to carefully distinguish between legitimacy in the context of inheritance and in the context of paternity. See Denbow v. Harris, 583 A.2d 205, 207 n.1 (Me. 1990) (stating that paternity is a question of biology while legitimacy is relevant to inheritance law). Nonmarital and quasi-marital children present difficulties in the law of inheritance that are not always well addressed by the concept of legitimacy. See, e.g., Ralph C. Brashier, Children and Inheritance in the Nontraditional Family, 1996 UTAH L. REV. 93, 94. Return to text.

[13] The use of the term "legal father" could also warrant discussion in a separate article. The term is used extensively in Law Review articles and in the case law of other states, which usually employ a meaning comparable with the use in this Article—the individual legally recognized as having all rights, responsibilities, and obligations of fatherhood with respect to the specific child or children. Prior to Privette, the word had no definition in Florida case law, and it still has no definition in Florida Statutes. See Privette, 617 So. 2d at 307 (defining "legal father" as the father named on the birth certificate).

The Florida Supreme Court used the term "legal father" on only two occasions prior to Privette. See In re Brown, 85 So. 2d 617, 619 (Fla. 1956) (regarding an adoption proceeding in which "legal father" was used in quotation marks to describe a putative or biological father—not a marital father); Theis v. City of Miami, 564 So. 2d 117, 119 (Fla. 1990) (using the term "legal father" to describe the marital father of a quasi-marital child who sought workers' compensation death benefits).

In the Florida District Courts of Appeal, the term "legal father" was first used to describe the marital father of a quasi-marital child born after 40 weeks of marriage but before permanent separation. See In re J.P., 220 So. 2d 665, 666 (Fla. 3d DCA 1969). Ironically, the Third District Court of Appeal held that the term be stricken from the trial court's order on the assumption that the term implied that the marital father was the biological father. See id. In Randolph v. McCullough, 342 So. 2d 129 (Fla. 1st DCA 1977), the West Publishing Company used the term in its synopsis to describe a marital father of a quasi-marital child that was born after 40 weeks of marriage but before permanent separation. See id. at 129. In In re Baby Boy S., 349 So. 2d 774 (Fla. 2d DCA 1977), the court described the marital father, who had consented to an adoption of a quasi-marital child born after 40 weeks of marriage but before permanent separation, as a "legal father." See id. at 775. In Perez v. Stevens, 362 So. 2d 998 (Fla. 3d DCA 1978), the term describes the father of a nonmarital child as established by a paternity order. See id. at 999. This use is compatible with Privette in the sense that this father's name will be placed upon the birth certificate. See Privette, 617 So. 2d at 307.

In In re Estate of Broxton, 425 So. 2d 23 (Fla. 4th DCA 1982), a marital father of a possible quasi-marital child was described as "the natural as well as the legal father." Id. at 24. In Hess v. Hess, 466 So. 2d 1179 (Fla. 3d DCA 1985), a post-dissolution marital father of quasi-marital children born 40 weeks after marriage, but before permanent separation, described himself as the "spiritual and legal father," although it was unclear whether he was the legal father. Id. at 1180. Erwin v. Everard, 561 So. 2d 445 (Fla. 5th DCA 1990), is similar to Privette because the mother sued the biological father for support of a quasi-marital child without joining the marital father. The terse opinion strangely describes the biological father as the "natural biological father." Id. at 445. The court later describes the marital father as a "legal father," meaning that he would be required to pay support under the trial court's erroneous ruling. See id. at 446.

In Kalbach v. Department of HRS, 563 So. 2d 809 (Fla. 2d DCA 1990), and Walden v. Munson, 593 So. 2d 1215 (Fla. 2d DCA 1992), the term "legal father" describes the father of a nonmarital child whose fatherhood had been established by a final judgment of paternity. See Kalbach, 563 So. 2d at 809-10; Walden, 593 So. 2d at 1215. Finally, in E.V. v. Department of HRS, 615 So. 2d 251 (Fla. 3d DCA 1993), E.V. is described as the "legal father" of A.L.M., whose mother is C.M. See id. It is unclear whether the court relied upon marriage or some other basis to describe E.V. as the legal father.

In Long v. Long, 716 So. 2d 329, 329 (Fla. 2d DCA 1998), the Second District Court of Appeal removed the word "legal" from the final judgment, which described the marital father as the legal father. The court apparently thought that "legal" suggested that the trial court had determined that the marital father was the biological father. Return to text.

[14] See Eldridge v. Eldridge, 16 So. 2d 163, 163-64 (Fla. 1944) (recognizing the common law's strong presumption of legitimacy). Return to text.

[15] Although chapter 742, Florida Statutes, is entitled "Determination of Parentage," the chapter determines "paternity" as a biological fact. See FLA. STAT. ch. 742 (1997 & Supp. 1998). Return to text.

[16] Florida's Bastardy Act was renamed the Paternity Act in 1975. See Act effective Oct. 1, 1975, ch. 75-166, § 10, 1975 Fla. Laws 298, 302. All references to bastardy proceedings and the term "bastard" were removed from the entire Act. See id. Return to text.

[17] The word "illegitimate" was also removed from the Bastardy Act in 1975. See id. However, "illegitimate" was featured prominently in Privette and was used as a factor in the supreme court's analysis concerning the steps necessary to support an order requiring genetic testing. See Privette, 617 So. 2d at 308. Return to text.

[18] "Out-of-wedlock" replaced the term "illegitimate" in the Parentage Act in 1975. See Act effective Oct. 1, 1975, ch. 75-166, 1975 Fla. Laws 298. The term is sometimes used to describe both nonmarital and quasi-marital children. See, e.g., 14 C.J.S. Children Out-of-Wedlock § 1 (1991). This loose clumping resulted from the fact that both nonmarital and quasi-marital children were historically deemed "illegitimate" under the common law of some states. See, e.g., State v. Palmer, 439 So. 2d 174, 175 (Ala. Civ. App. 1983) (noting that an illegitimate child can be born in or out of wedlock); see also MICHAEL GROSSBERG, GOVERNING THE HEARTH 200-07 (1985) (highlighting the post-Revolutionary trend toward expanding the legal notion of legitimacy). Return to text.

[19] The common law legitimized, or at least presumptively legitimized, any child born in lawful wedlock or within a competent time afterwards. See BLACKSTONE, supra note 1, at 434; see also Dennis v. Department of HRS, 566 So. 2d 1374, 1376 (Fla. 5th DCA 1990). By statute, Florida now allows a nonmarital child to become a marital child by virtue of a marriage between the biological parents following the birth of the child. See FLA. STAT. § 742.091 (1997). This Article's statutory proposal does not affect this rule, which presumably would remain in Part II of the proposed act. Return to text.

[20] See FLA. STAT. § 742.10 (1997) (establishing paternity for children born out of wedlock). Return to text.

[21] See In re Estate of Sekanic, 653 N.Y.S.2d 449 (N.Y. App. Div. 1997) (using the term "out-of-wedlock" exclusively in an action to determine paternity for inheritance purposes); see also Brashier, supra note 12 at 93. Return to text.

[22] See FLA. STAT. § 382.013(2) (1997). Return to text.

[23] Although the term "quasi-marital child" is used extensively in this Article, it is not used in the proposed statute, which addresses three distinct types of quasi-marital children. Return to text.

[24] See generally Tracy Cashman, When Is a Biological Father Really a Dad?, 24 PEPP. L. REV. 959 (1997) (explaining the benefits to the child if biological fathers are prevented from asserting rights long after birth). Return to text.

[25] See FLA. STAT. § 63.212(1)(i)(2)(d) (1997) (concerning contracts to transfer parental rights); id. § 742.12(4) (1997) (concerning scientific testing for paternity); id. § 751.011(2) (defining "putative father"). Based on a Westlaw search on November 11, 1998, "biological father" has been used over 100 times in Florida case law and was first used in 1973. See Taylor v. Taylor, 279 So. 2d 364, 369 (Fla. 4th DCA 1973) (relieving the marital father of child support obligations, over Judge Walden's strong dissent, because the marital father was not the child's biological father). Return to text.

[26] See Brashier, supra note 12, at 134-37. Return to text.

[27] The scope of this Article does not include the complex issues of surrogacy. There is a considerable body of literature discussing artificial insemination, surrogate mothers, gay parenting, and other contemporary issues. See generally Lori B. Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood, 81 VA. L. REV. 2343 (1995); David L. Chambers, What If: The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447 (1996); Malina Coleman, Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted Human Reproduction, 17 CARDOZO L. REV. 497 (1996); Janet L. Dolgin, Suffer the Children: Nostalgia, Contradiction and The New Reproductive Technologies, 28 ARIZ. ST. L.J. 473 (1996); Alexa E. King, Solomon Revisited: Assigning Parenthood in the Context of Collaborative Reproduction, 5 UCLA WOMEN'S L.J. 329 (1995); Radhika Rao, Assisted Reproductive Technology and the Threat to the Traditional Family, 47 HASTINGS L.J. 951 (1996); Benjamin L. Weiss, Single Mothers' Equal Right to Parent: A Fourteenth Amendment Defense Against Forced-Labor Welfare "Reform," 15 LAW & INEQ. J. 215 (1997). The legal issues surrounding these matters are complex and fascinating.

In the artificial insemination scenario, the legal father is often the marital father, and in the surrogate motherhood scenario, the legal father is often the biological father or the receiving mother's husband. See, e.g., FLA. STAT. § 742.16 (1997). In this way, the legislative policies for these rare children are compatible with the approach this Article suggests for quasi-marital children. Return to text.

[28] See FLA. STAT. § 382.013(2)(a) (1997); cf. UNIF. PARENTAGE ACT §4, 9B U.L.A. 298-99 (1987). Return to text.

[29] See infra Appendix, § 742.301. Return to text.

[30] As discussed later, the term "legal father" does not have this meaning in Daniel and has not been consistently defined in the case law. See Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997) (holding that a husband who is not the biological father and not an adoptive parent does not have a legal obligation to support the child, despite the child's legitimate status). The term "legal father" had little legal significance in Florida until the supreme court used the term in Privette. That decision rather casually defined the term parenthetically as "the one listed on the birth certificate." Department of HRS v. Privette, 617 So. 2d 305, 307 (Fla. 1993). Return to text.

[31] See Nancy E. Dowd, Rethinking Fatherhood, 48 U. FLA. L. REV. 523, 527 (1996) (discussing gender biases and the father's nurturing role). This Article uses the term "functional father" because it is more neutral, although this man may be someone who nurtures the child. Because a functional father can be a surrogate of many varieties, the term includes psychological fathers and others who willingly perform the functions of fatherhood. See generally CHRISTOPHER P. ANDERSEN, FATHER: THE FIGURE & THE FORCE (1983). Return to text.

[32] There is an ongoing debate concerning the need for fathers in the family and the role that fathers should play within that structure. The author believes functional fathers are needed, and the state should strongly promote the existence of such fathers for children. Further discussion of this policy may be found elsewhere. See generally DAVID BLANKENSHIP, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995); Fred A. Bernstein, This Child Does Have Two Mothers . . . And a Sperm Donor with Visitation, 22 N.Y.U. REV. L. & SOC. CHANGE 1 (1996); Nancy D. Polikoff, The Deliberate Construction of Families Without Fathers: Is It an Option for Lesbian and Heterosexual Mothers?, 36 SANTA CLARA L. REV. 375, 392 (1996) (having a functional father helps to ensure that the reality of the family structure will not be destroyed in the child's mind); Amy L. Wax, The Two-Parent Family in the Liberal State: The Case for Selective Subsidies, 1 MICH. J. RACE & L. 491, 533 (1996) (stating that the presence of a functional father in the family increases the chances of raising a law-abiding citizen, thereby imposing fewer costs on society). Return to text.

[33] Even today, chapter 742, Florida Statutes, contains no express provisions for visitation or other parental rights for fathers determined in paternity actions. To avoid constitutional issues, the Determination of Parentage Act was construed in 1974 as giving the biological father parentage rights comparable to the rights of a father in a divorce proceeding. See Brown v. Bray, 300 So. 2d 668, 670 (Fla. 1974). Until 1951, the biological father was "condemned by the judgment" to pay the incidental expenses of the birth and up to $50 annually to the mother. FLA. STAT. § 742.03 (1941) (repealed by Act effective June 9, 1951, ch. 26949, § 9, 1951 Fla. Laws 1185, 1187). After 1951, the statute contained modest child support provisions, which often discriminated against nonmarital children. See FLA. STAT. § 742.041 (1961) (repealed by Act effective October 1, 1986, ch. 86-220, § 157, 1986 Fla. Laws 1603, 1726). Occasionally, this Article and the proposed statute refer to a "putative biological father" to avoid any possible confusion. Return to text.

[34] For example, the putative father was not a true party in Daniel; he was merely deposed in the action as a witness. See Daniel, 695 So. 2d at 1254 n.1. Return to text.

[35] See FLA. STAT. § 751.011(2) (1997) (stating that a putative father is "a man who reasonably believes himself to be the biological father of the minor child, but who is unable to prove his paternity due to the absence of the mother of the child"). Return to text.

[36] One of the reasons that the Florida Supreme Court had difficulties determining parentage in Privette is that the Legislature had entitled chapter 742, "Determination of Parentage," but the provisions therein, for all issues other than surrogate parentage, are designed to determine paternity, not parentage. Return to text.

[37] The possible magnitude of this problem is reflected in the fact that 2000 years ago, the Ten Commandments contained not one, but two provisions related to the subject: "thou shalt not commit adultery," and "thou shalt not covet thy neighbor's wife." Exodus 20:14, 17. Return to text.

[38] JARED DIAMOND, THE THIRD CHIMPANZEE 85-87 (1992). Given the extensive testing of families for donor organ purposes, it is likely that more recent information is available, but the author has not located such data. Return to text.

[39] In the proposed statutory revision, Type I is described as children born within 40 weeks of marriage, Type III as children born after permanent separation, and Type II as all children born between these two periods. See infra Appendix. Return to text.

[40] This Article does not discuss the type of child that exists between nonmarital and Type I. If a child is conceived and delivered before marriage, and the mother marries shortly after the birth, it is likely that her new husband will be the functional father even if he is not the biological father. Section 742.091, Florida Statutes, allows a "reputed" father to become the legal father by such a marriage. See FLA. STAT. § 742.091 (1997). In light of recent amendments, a declaration of paternity becomes an establishment of paternity after 60 days, subject to challenge for fraud, duress, or material mistake of fact. See Act effective July 1, 1997, ch. 97-170, § 70, 1997 Fla. Laws 3202, 3255 (amending FLA. STAT. § 742.10(1) (1995)). In a statutory revision, any refinements addressing these children should occur in a provision dealing with nonmarital children. See L.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998). Return to text.

[41] Adultery is arguably more of a religious, moral, or ethical factor than a legal factor. Historically, adultery of any variety was a capital offense in the colonies. See THE LAWS AND LIBERTIES OF MASSACHUSETTS, 1641-1691, at 12 (Scholarly Resources, Inc. 1976) (1648). Today, open adultery, or adulterous cohabitation, is a crime in Florida, but private extramarital sexual activity is legal. See FLA. STAT. § 798.01 (1997). Although the open adultery law is rarely enforced, adultery, nevertheless, remains a factor that may be considered in determining financial issues in dissolution of marriage proceedings. See id. § 61.08(1). Thus, while we no longer tend to criminalize adultery, legal and social policies still discourage such conduct. Return to text.

[42] Florida has not recognized common law marriages since January 1, 1968. See id. § 741.211. Common law marriages created too many ambiguities and confusions. Ironically, as divorce has become more complex and expensive, there seems to be a growing group in Florida who obtain legal marriages but do not obtain a divorce upon permanent separation. Return to text.

[43] The phrase "divorced marital father" is used because there is no guarantee that the ex-husband is the biological father. Return to text.

[44] See discussion supra note 32. Return to text.

[45] See FLA. STAT. § 742.011 (1997). Return to text.

[46] See Department of HRS v. Privette, 617 So. 2d 305 (Fla. 1993). Return to text.

[47] See generally Brashier, supra note 12, at 93 (discussing children's inheritance rights outside the traditional nuclear family). Return to text.

[48] See FLA. STAT. § 751.02 (1997). Return to text.

[49] See BLACKSTONE, supra note 1, at 434. Return to text.

[50] This moral argument also affects some scholarly presentations. See, e.g., David V. Hadek, Why the Policy Behind the Irrebuttable Presumption of Paternity Will Never Die, 26 SW. U. L. REV. 359, 395 (1997) (stating that society's growing concern for individuals' rights has been a detriment to the marital family). Return to text.

[51] See MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 292-93 (1989) (describing the shift as one from an economic family unit to an emotional support group for individuals). Return to text.

[52] A father's claim to a child is often expressly or implicitly described as a property right. As recently as 1952, the Florida Supreme Court stated that a father had a "legal property interest in the services of his child." Ripley v. Ewell, 61 So. 2d 420, 422 (Fla. 1952). The influence of this property concept is most obvious in tort law. See United States v. Dempsey, 635 So. 2d 961, 965 (Fla. 1994) (holding that a parent of a negligently injured child has a right to recovery for the loss of filial consortium, including day-to-day services); see also GROSSBERG, supra note 18, at 234-37; Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1036-50 (1992) (presenting an overview of the historical notion of children as property).

The shift in our view of children can also be seen in the evolution of the school year. Historically, schools started late enough each day to allow chores to be completed on the farm and scheduled vacations to accommodate local agricultural needs. As children ceased to be workers on the family farms and in the family businesses, the schools could develop far more flexible schedules. Return to text.

[53] Florida has not retained official statistics on divorce prior to 1927. The rate per 1000 adults in the 1930s was between one and three. The rate went up dramatically during the late 1930s and the years surrounding World War II. The rate stabilized at about four per 1000 in the mid-1950s, and jumped to approximately seven per 1000 when no-fault divorce became available in 1971. Interestingly, the rate has been relatively stable at seven per 1000 since the mid-1970s. See INSTITUTE OF SCIENCE OF PUB. AFFAIRS, ATLAS OF FLORIDA 151 (Edward A. Fernald & Elizabeth D. Purdum eds., 1992). Return to text.

[54] See generally CARL ABBOTT, THE NEW URBAN AMERICA: GROWTH AND POLITICS IN THE SUNBELT CITIES (rev. ed. 1987) (discussing the overall social and economic changes of urbanization in the southern United States). Return to text.

[55] The rate of nonmarital births per 1000 is commonly reported as increasing from about seven in 1940 to 45 in 1993. VENTURA ET AL., THE DEMOGRAPHY OF OUT-OF- WEDLOCK CHILDBEARING, REPORT TO CONGRESS ON OUT-OF- WEDLOCK CHILDBEARING (U.S. Dep't of Health & Human Servs. 1995). Return to text.

[56] See BLANKENSHIP, supra note 32, at 124-47; Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 FAM. L.Q. 519, 520 (1996); W. Craig Williams, Note, The Paradox of Paternity Establishment: As Rights Go Up, Rates Go Down, 8 U. FLA. J.L. & PUB. POL'Y 261, 261-62 (1997). Return to text.

[57] HLA testing was not permitted in Simons v. Jorg, 375 So. 2d 288 (Fla. 2d DCA 1979). Shortly thereafter, the author represented the biological father in a case in which the HLA test was admitted. See Stratton v. McQueen, 389 So. 2d 1190 (Fla. 2d DCA 1980). There was considerable debate over the admissibility of genetic testing at that time. See generally Jack P. Abbott et al., Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 FAM. L.Q. 247 (1976-77); Leonard R. Jaffee, Comment on the Judicial Use of HLA Paternity Test Results and Other Statistical Evidence: A Response to Terasaki, 17 J. FAM. L. 457 (1978-79); Mark Edward Larson, Jr., Blood Test Exclusion Procedures in Paternity Litigation: The Uniform Acts and Beyond, 13 J. FAM. L. 713 (1973-74); Paul I. Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. FAM. L. 543 (1977-78); Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971); A.S. Wiener & W.W. Socha, Methods Available for Solving Medicolegal Problems of Disputed Parentage, 21 J. FORENSIC SCI. 42 (1976). For a discussion of HLA testing after these decisions, see Jean E. Maess, Admissibility, Weight and Sufficiency of Human Leukocyte Antigen (HLA) Tissue Typing Tests in Paternity Cases, 37 A.L.R. 4th 167 (1985). Return to text.

[58] The tension is expressed in the writings of Samuel von Pufendorf. He explained:

1. From the marriage spring children, over whom parental authority has been established,—the most ancient and at the same time the most sacred kind of rule, under which children are bound to respect the commands and recognize the superiority of parents.
2. The authority of parents over their children arises from two main causes: first, because the natural law itself, in commanding man to be social, enjoined upon parents the care of their children; and that this might not be neglected, Nature at the same time implanted in them the tenderest affection for their offspring. . . . And then that authority rests upon the tacit consent also of the offspring. . . . Actually, however, the parents' authority over their offspring is established when they take up the child and nurture it, and undertake to form it, to the best of their ability, into a fit member of human society. SAMUEL VON PUFENDORF, ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW 97 (Frank Gardner Moore trans., Oxford Univ. Press 1927) (1682). Return to text.

[59] In 1829 Florida adopted the common law as it existed in England on July 4, 1776. See Act effective Nov. 6, 1829, § 1, 1829 Fla. Laws 8, 8-9. This patriotic date is convenient because it roughly aligns with the publication of Blackstone's Commentaries on the Laws of England in 1765. Return to text.

[60] The presumption was apparently created before this era. See BLACKSTONE, supra note 1, at 445 (presuming that a child born to a married couple was legitimate); POLLOCK & MAITLAND, supra note 12, at 398-99. Return to text.

[61] See Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879, 886-90 (1984) (discussing the traditional parental rights doctrine and its relationship to natural law). Return to text.

[62] BLACKSTONE, supra note 1, at 435. Return to text.

[63] Id. at 436. Return to text.

[64] See discussion supra note 11. Return to text.

[65] The term "natural father" is not even defined in Black's Law Dictionary. See discussion supra note 11. Perhaps it is obvious that the term intends to identify the biological father. On the other hand, natural law theory clearly wavered on whether the rights possessed by this man, as a member of a prepolitical human institution, were given to him based on the act of sexual intercourse or the process of nurturing children within the family unit. Given the use of this term in a constitutional context, the legal community should pin down which act makes a natural father "natural." Return to text.

[66] See Lehr v. Robertson, 463 U.S. 248, 261 (1983) (recognizing that a father's due process rights are afforded substantial protection when he demonstrates "full commitment" to active participation in parenting); Santosky v. Kramer, 455 U.S. 745, 758 (1982) (holding that the "fair preponderance of the evidence" standard in a parental rights termination proceeding violated the parent's due process rights); Caban v. Mohammed, 441 U.S. 380, 394 (1979) (stating that a New York statute allowing unwed mothers, but not unwed fathers, to block adoption by withholding consent violated the Equal Protection Clause); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (noting that the due process rights of an unwed father were not violated by the child's adoption by a stepfather when the unwed father never had, nor sought, actual custody of the child); Stanley v. Illinois, 405 U.S. 645, 648 (1972) (holding that the Due Process Clause requires a parent, even an unwed father, to be granted a hearing before terminating parental rights); see also Hadek, supra note 50, at 363-74 (discussing the legal history and cases from Stanley to Lehr); Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401, 2406-07 (1995) (examining various legal theories concerning the parent-child relationship). Return to text.

[67] See supra note 58. Relying on Montesquieu, Blackstone saw the "establishment of marriage in all civilized states" as "built on this natural obligation of the father to provide for his children." BLACKSTONE, supra note 1, at 435. Return to text.

[68] See Eldridge v. Eldridge, 16 So. 2d 163, 163-64 (Fla. 1944) (stating that if the child is born during a marriage, the husband must overcome a presumption of legitimacy in order for the child to be "bastardized"). Return to text.

[69] Lord Mansfield's Rule stated, "[I]t is a rule, founded in decency, morality and policy, that [the father or mother] shall not be permitted to say after marriage, that . . . [their] offspring is spurious." Goodright v. Moss, 98 Eng. Rep. 1257, 1258 (1777). Return to text.

[70] See Eldridge, 16 So. 2d at 163-64 (stating that a husband may overcome the presumption of legitimacy, but only with "sufficiently strong" testimony). Return to text.

[71] See id. The standard was less than the criminal "reasonable doubt" standard but similar to the modern "clear and convincing" standard. Indeed, in Privette, the court translated the older concept that the presumption "will not fail unless common sense and reason are outraged" into a standard requiring proof by clear and convincing evidence. Department of HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993). Return to text.

[72] See discussion supra note 41. Return to text.

[73] The author does not necessarily maintain that the common law's creators expressly intended to create laws establishing families for children. Perhaps the male judges who announced these rules simply saw the husband's "possession" of the child as nine-tenths of the law justifying rights and responsibilities. The effect, however, was a body of law that gave virtually all children born into a marriage a definite family from birth. Return to text.

[74] See Bartlett, supra note 61, at 963 n.196. This is interesting in light of the common law's reliance on natural law theory. Instead of having an obligation to support his biological children, a man had an obligation to support his marital children. This is another example of the extent to which the common law used natural law terminology but did not implement its biological theory. If it is "natural" for biological fathers to support their children, then bastardy statutes were quasi-criminal statutes to punish what were considered "unnatural" acts. Return to text.

[75] The specific English statutes in 1776 that concerned bastardy were not adopted under section 2.01, Florida Statutes. See Report of Leslie A. Thompson under Act of December 27, 1845, in Volume 1 of the Florida Statutes Annotated. Return to text.

[76] See Act effective Jan. 5, 1828, § 1, 1828 Fla. Laws 32, 32. Return to text.

[77] See Act effective Oct. 1, 1975, ch. 75-166, § 5, 1975 Fla. Laws 298, 301 (codified at FLA. STAT. § 742.011 (1975)). In 1993 the Florida Legislature changed the chapter's title back to "Determination of Parentage," but the statutes within the chapter still concern "determination of paternity." Compare FLA. STAT. ch. 742 (Supp. 1992) with FLA. STAT. ch. 742 (1993). Return to text.

[78] See Act effective June 24, 1983, ch. 83-214, § 13, 1983 Fla. Laws 845, 849 (codified at FLA. STAT. § 742.011 (1983)). Return to text.

[79] See Act effective Oct. 1, 1986, ch. 86-220, §§ 150-54, 1986 Fla. Laws 1603, 1723-27 (codified at FLA. STAT. §§ 742.011-.12 (Supp. 1986)). Return to text.

[80] See Privette v. Department of HRS, 585 So. 2d 364, 365 (Fla. 2d DCA 1991), aff'd and remanded for further proceedings, 617 So. 2d 305 (Fla. 1993). Return to text.

[81] See Daniel v. Daniel, 681 So. 2d 849, 849 (Fla. 2d DCA 1996), aff'd, 695 So. 2d 1253 (Fla. 1997). Return to text.

[82] 585 So. 2d 364 (Fla. 2d DCA 1991). Return to text.

[83] See id. at 365. Return to text.

[84] See id. Return to text.

[85] See id. The author sat on the panel of judges deciding this case in the Second District Court of Appeal. The record is still intact at the court. Return to text.

[86] The stipulations are not reported in the opinions. See Stipulated Facts, Department of HRS v. Privette, No. 90-1521 (Fla. 12th Cir. Ct. 1991). Return to text.

[87] In both Privette and Daniel, the name of the child is contained in the record. This Article will not disclose the children's names. See Fla. R. App. P. 9.146(e) (stating that children are referred to by initials in traditional termination proceedings). Return to text.

[88] Mrs. Sease was still married to Mr. Sease at the time of the discovery hearing. See Stipulated Facts ¶ 1, HRS v. Privette, No. 90-1521 (Fla. 12th Cir. Ct. 1991). Return to text.

[89] The facts as reported in Privette are extremely limited because the case came to the Second District Court of Appeal in 1991 as a certiorari petition involving a discovery dispute and contained no depositions or evidentiary hearings. Return to text.

[90] Even at the time the Florida Supreme Court gave its opinion, Mr. Privette's attorney, Daniel A. David, knew little about Mr. Sease. Mr. David closed his practice shortly thereafter and relocated to Tallahassee. Stephen F. Ellis undertook Mr. Privette's representation. On remand, the State amended the complaint to include Mr. Sease as a party but never served him. Mrs. Sease may have moved from the state. The action was never resolved. Interview with Daniel A. David, Att'y, and Stephen F. Ellis, Att'y (Oct. 1997). Return to text.

[91] See Privette, 585 So. 2d at 365. Return to text.

[92] See id. Return to text.

[93] See id. Return to text.

[94] 580 So. 2d 219, 222 (Fla. 1st DCA 1991) (holding that the "putative father does not have standing to raise the presumption of legitimacy in avoidance of the potential ordering of support for the child"). Return to text.

[95] See Privette, 585 So. 2d at 366. Return to text.

[96] Id. Return to text.

[97] Id. Return to text.

[98] See id. Return to text.

[99] See Fla. R. App. P. 9.030(a)(2)(A)(iv) (stating that the Florida Supreme Court can accept jurisdiction when a conflict exists between two or more district courts of appeal). Return to text.

[100] See Department of HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993). Return to text.

[101] Id. at 307. Return to text.

[102] See id. at 308. Return to text.

[103] Id. Return to text.

[104] Id. Return to text.

[105] Id. at 309. Return to text.

[106] Id. Return to text.

[107] Id. at 307 n.2. Return to text.

[108] See id. at 309. Return to text.

[109] See Kimberly G. Montanari, Does the Presumption of Legitimacy Actually Protect the Best Interests of the Child?, 24 STETSON L. REV. 809, 842 (1995) (arguing that Privette should only apply in contested paternity cases that implicate the presumption of legitimacy). Return to text.

[110] These problems are not discussed to any extent in published documents. In 1996 and 1997, The author participated in continuing judicial education programs with Florida circuit court judges who must address Privette issues at trial. These judges commonly voiced concerns regarding these issues. Return to text.

[111] Privette, 617 So. 2d at 308 (referring to "quasi-marital children"). Return to text.

[112] See Montanari, supra note 109, at 835. Return to text.

[113] For example, in one Florida case, the court required a guardian to represent a "Type II quasi-marital child" in a divorce. See Alchin v. Alchin, 667 So. 2d 477, 479 (Fla. 2d DCA 1996). In Alchin, the boyfriend intervened in the divorce after he and the mother had obtained a blood test without the marital father's knowledge. The marital father sought to remain the legal father. See id. By invoking Privette, the district court recognized the possibility that the status of legal father could be shifted to another man. See id. at 479-80. In Ownby v. Ownby, 639 So. 2d 135 (Fla. 5th DCA 1994), the court reached a similar result in a divorce where the husband sought custody of all six of the couple's children, the youngest being a possible "quasi-marital child." Judge Griffin's separate opinion voices concerns as to joining putative fathers in divorce actions. See id. at 139 (concurring in part; dissenting in part). In White v. White, 661 So. 2d 940 (Fla. 5th DCA 1995), the court reviewed on certiorari a nonfinal order in a divorce proceeding. The marital father, who had proof that he was not the biological father of a "Type I quasi-marital child," sought a determination of paternity in the divorce. See id. The trial court denied his request without appointing a guardian. See id. The district court remanded, requiring that appointment of a guardian and, apparently, a determination of paternity and parentage be made. See id. at 940-41. Note that White is identical to Daniel, except that the mother in White did not concede the accuracy of the 0% blood test. Finally, in Robinson v. State, 661 So. 2d 363 (Fla. 1st DCA 1995), the district court declined to require a guardian in a paternity action because the marital father had been determined not to be the biological father in a pre-Privette divorce. The putative father was not allowed to challenge the elimination of the child's legal father even though the legal father had been eliminated in a proceeding to which he was not a party and in which it did not appear that the child had a guardian. See id. Under White, a guardian would have been necessary in the Robinson divorce proceeding if the divorce had occurred just a few months later. Return to text.

[114] Privette, 617 So. 2d at 307. Return to text.

[115] See FLA. STAT. § 409.2561(1) (1997) (giving priority to the state for the establishment of support even in public assistance cases). Return to text.

[116] Privette, 617 So. 2d at 308 n.5. Return to text.

[117] See FLA. STAT. § 61.405 (1997). Return to text.

[118] See In re E.F., 639 So. 2d 639, 640 (Fla. 2d DCA 1994) (noting that the trial court did not "fundamentally" err when it attempted to locate a guardian ad litem but was unable to do so because of the inadequate supply of volunteers). Return to text.

[119] See White v. White, 661 So. 2d 940, 941 (Fla. 5th DCA 1995) (stating that the trial court was in no position to rule on the paternity issue absent a guardian ad litem to protect the child's best interests). Return to text.

[120] The author has encouraged this precaution at continuing judicial education seminars. Return to text.

[121] Privette, 617 So. 2d at 308 n.4. Return to text.

[122] Id. at 307. Return to text.

[123] See FLA. STAT. §§ 39.46, 63.072(1) (1997). Technically, a parent who has abandoned a child waives the right to consent to the adoption, but the judgment has the effect of relieving this parent of all parental rights and responsibilities. See id. § 63.172. Return to text.

[124] See id. § 63.172. Return to text.

[125] See In re D.B., 385 So. 2d 83, 91 (Fla. 1980) (holding that the Due Process and Equal Protection Clauses of the Federal and the Florida Constitutions require the court to appoint counsel to an indigent parent in termination proceedings). Return to text.

[126] Constructive service of process is not authorized in Florida for use in a paternity action. See FLA. STAT. § 48.011 (1997); Drucker v. Fernandez, 288 So. 2d 283, 283 (Fla. 3d DCA 1974). Constructive service in parental terminations was first authorized as recently as 1994. See Act effective Oct. 1, 1994, ch. 94-164, § 45, 1994 Fla. Laws 963, 1015 (amending FLA. STAT. § 49.011(13) (1993)). Return to text.

[127] See Privette, 617 So. 2d at 307. Return to text.

[128] Id. (citing FLA. CONST. art. I, § 9). Article I, section 9 of the Florida Constitution is the state counterpart to the Federal Due Process Clause. See U.S. Const. amend. XIV, §1. The U.S. Supreme Court has not decided whether a child has such a liberty interest. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) ("We have never had occasion to decide whether a child has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship."). Return to text.

[129] Privette, 617 So. 2d at 307. Return to text.

[130] Id. Return to text.

[131] See supra note 13. Return to text.

[132] Privette, 617 So. 2d at 307. Return to text.

[133] See FLA. STAT. § 382.013(2) (Supp. 1998). Return to text.

[134] See id. Return to text.

[135] If the birth certificate actually made the marital father the legal father, the doctrine of fatherhood by estoppel would not be necessary. See Wade v. Wade, 536 So. 2d 1158, 1159-60 (Fla. 1st DCA 1988) (estopping a former husband from "disavowing [a] child as his own for purposes of parental support"); Marshall v. Marshall, 386 So. 2d 11, 12 (Fla. 5th DCA 1980) (stating that the child's best interests would not be served by allowing the husband to disavow his prior recognition of paternity). There would be no need to estop the marital father from denying his biological fatherhood if his status as legal father were fixed and permanent by virtue of the birth certificate. Return to text.

[136] The author is indebted to Professor Iris Burke of the University of Florida, College of Law, who provided many constructive suggestions during the writing of this Article. She first suggested this very reasonable interpretation of Privette. The supreme court probably views the legal father as a presumptive category, allowing the doctrine of fatherhood by estoppel to continue to exist. It also makes the result in Daniel more compatible with Privette. Return to text.

[137] Privette, 617 So. 2d at 307. Return to text.

[138] Interview with Daniel A David, Att'y, and Stephen F. Ellis, Att'y (Oct. 1997). Return to text.

[139] See Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). Return to text.

[140] See id. at 1255. Return to text.

[141] Neither parent may voluntarily abandon a child in a state-initiated parental termination proceeding unless termination is in the child's manifest best interests. See FLA. STAT. § 39.4611(1)(c) (1997). Thus, it is logical that a parent cannot relinquish rights in a Privette hearing without consideration of the child's interests. Return to text.

[142] See generally Santosky v. Kramer, 455 U.S. 745 (1982) (holding that parents who are party to a state-initiated termination of parental rights proceeding are entitled to due process). Return to text.

[143] See Petitioner's Initial Brief app. at 2, Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997) (No. 89, 363). The facts in Daniel are not described in detail in the published opinions. The statement of the facts in this section is derived from the appellate briefs and from the guardian ad litem's written report to the trial court. Return to text.

[144] See id. app. at 3. Return to text.

[145] The trial judge was following a procedure that the author recommended to the trial bench in a continuing judicial education program in May 1996. See Chris W. Altenbernd, Privette's Puzzle: The Shifting Legal Father, Advanced Judicial Studies (May 1996) (on file with Office of the State Courts Adm'r, Tallahassee, Fla.). Return to text.

[146] Although Mr. and Mrs. Daniel agreed that Mr. Staggers was the biological father, no testing was done. Thus, he cannot be accurately described as a biological father.

The putative biological father, Mr. Staggers, was never a true party to this divorce proceeding. Third parties are a rarity in divorce. Although both the Second District and the Florida Supreme Court referred to Mr. Staggers as a party, he participated only to the extent that he honored the guardian ad litem's witness subpoena.

The Second District Court of Appeal's opinion states that "the trial court . . . made the biological father a party to the proceedings." Daniel v. Daniel, 681 So. 2d 849, 850 (Fla. 2d DCA 1996). The court then explains in a footnote that he only participated to the extent that his deposition was taken. See id. at n.1. In fact, he was never shown in the style of the case as a party nor were pleadings filed that described him as a party. See id. The supreme court describes him similarly. See Daniel, 695 So. 2d at 1254. Return to text.

[147] See Petitioner's Initial Brief app. at 1, Daniel (No. 89, 363). Return to text.

[148] See id. app. at 4. Return to text.

[149] See id. app. at 5. Return to text.

[150] See id. app. at 1. Return to text.

[151] See id. app. at 9. Return to text.

[152] See id. Return to text.

[153] See Daniel v. Daniel, 681 So. 2d 849, 850 (Fla. 2d DCA 1996). Return to text.

[154] Albert v. Albert, 415 So. 2d 818, 820 (Fla. 2d DCA 1982); accord Portuondo v. Portuondo, 570 So. 2d 1338, 1342 (Fla. 3d DCA 1990); Bostwick v. Bostwick, 346 So. 2d 150, 151 (Fla. 1st DCA 1977); Taylor v. Taylor, 279 So. 2d 364, 366 (Fla. 4th DCA 1973). Return to text.

[155] 661 So. 2d 363 (Fla. 1st DCA 1995). Return to text.

[156] See Daniel, 681 So. 2d at 851 (discussing and agreeing with the Robinson court). Return to text.

[157] Id. (emphasis added). Return to text.

[158] See id. Return to text.

[159] See id. Return to text.

[160] Daniel, 681 So. 2d at 852. Return to text.

[161] See Goodright v. Moss, 98 Eng. Rep. 1257, 1258 (K.B. 1777). Return to text.

[162] Daniel, 695 So. 2d at 1253. Return to text.

[163] See id. at 1254. Return to text.

[164] Id. at 1255. Return to text.

[165] See id. Return to text.

[166] Id. Return to text.

[167] Because Mr. Daniel remains on the birth certificate as the legal father, if Mrs. Daniel and Mr. Staggers both die in accidents, does Mr. Daniel have any responsibility to support his legal daughter? Does he have some backup or inchoate obligation even if he has no support obligation at this time? The court in Daniel did not directly address this scenario. However, by approving the Albert line of cases, the opinion strongly suggested that Mr. Daniel would have no obligation to support the child even if she were orphaned by her biological parents. If that is true, legitimacy now has little more practical value than the buttonhole on a suit's lapel. Return to text.

[168] The opinion does not discuss fatherhood by estoppel, an issue that the parties did not address. Nevertheless, Mr. Daniel entered into this marriage with full disclosure. The law of fatherhood by estoppel is not well developed in Florida, but Mr. Daniel would have remained the legal father, essentially by estoppel, in some other jurisdictions because he married a pregnant woman. See Wade v. Wade, 536 So. 2d 1158 (Fla. 1st DCA 1988); Marshall v. Marshall, 386 So. 2d 11, 12 (Fla. 5th DCA 1980). Florida clearly recognizes that both the husband and the wife can be estopped to deny the husband's paternity of a child. However, the case law does not establish what actions for what period of time are necessary to create an estoppel. It is a theory without any established parameters. See, e.g., L... v. L..., 497 S.W.2d 840, 842 (Mo. Ct. App. 1973) (finding that a husband must pay child support in a divorce because he married the wife knowing she was pregnant); Hartford v. Hartford, 371 N.E.2d 591, 596 (Ohio Ct. App. 1977) (requiring that a husband pay support for a Type II quasi-marital child conceived during a temporary separation). In Daniel, a good argument can be made that Mr. Daniel's marriage vows created a contract that should have estopped him from denying parentage in this case. The proposed statute would leave Mr. Daniel as the legal father unless he had a written agreement with the mother to determine paternity following the birth of the child. If a similar statute had been in effect when Mr. Daniel visited his attorney prior to the marriage, it is likely that he would have had such a prenuptial agreement. Return to text.

[169] See Daniel, 695 So. 2d at 1255. Return to text.

[170] A judgment of paternity invokes the provisions of sections 382.013(2)(c) and 382.015 of the Florida Statutes. See FLA. STAT. § 382.013(2)(c) (Supp. 1998); id. § 382.015 (1997). If a paternity determination showed Mr. Staggers as the biological father, the birth certificate would normally be amended to show Mr. Staggers as the father on the birth certificate. Mr. Daniel would no longer be the legal father and his role to protect some concept of legitimacy would be over. The only reason the birth certificate would not be amended is because of the supreme court's specific ruling that the child's legitimacy "will not be affected by a determination of paternity." Daniel, 695 So. 2d at 1255. The trial court might feel compelled to ignore the statute requiring this change and obey the supreme court's mandate. Return to text.

[171] See id. at 1254. Return to text.

[172] See Daniel v. Daniel, 681 So. 2d 849, 851 (Fla. 2d DCA 1996). Return to text.

[173] Daniel, 695 So. 2d at 1254. Return to text.

[174] The "presumption of paternity" concept was borrowed from Prater v. Prater, 491 So. 2d 1280, 1281 (Fla. 5th DCA 1986) (holding that a Florida court has no jurisdiction to determine paternity of a child in an ex parte dissolution case where one party lives outside of Florida and does not appear in the suit). It is not obvious that Judge Dauksch intended to create a new presumption in that case, and he may have merely used substitute words to describe the presumption of legitimacy.

The phrase "presumption of paternity" was also used in Hall v. Hall, 672 So. 2d 60, 62 (Fla. 1st DCA 1996). In Hall, a divorce proceeding, an adoptive father of an infant born in the Philippines claimed that he was also the biological father. See id. at 61 n.1. The First District Court of Appeal rejected the trial court's use of a "presumption of paternity" by remanding the case with orders to reinstate temporary, shared custody and visitation rights to the adoptive mother. See id. at 62. This was somewhat different from the presumption in Daniel. Return to text.

[175] California's irrebuttable presumption of paternity is clearly the same as the presumption of legitimacy. See Hadek, supra note 50, at 374-86 (asserting that California's "conclusive presumption of paternity . . . has been a mainstay in California law for well over a century" resulting from a "deep disdain for illegitimate children and an interest in preserving the peace and tranquility of the family"). Alabama has a statutory presumption of paternity that appears comparable to the common law presumption of legitimacy. See ALA. CODE § 27-17-1 (1975); Ex parte Presse, 554 So. 2d 406, 408 (Ala. 1989). The terms also seem equivalent in Illinois and Oregon. See, e.g., In re Marriage of Klebs, 554 N.E.2d 298, 304 (Ill. App. Ct. 1990); In re Matter of the Marriage of A., 598 P.2d 1258 (Or. Ct. App. 1979). Also, the Uniform Parentage Act contains a presumption of parentage that appears to be comparable to the common law's presumption of legitimacy. See UNIF. PARENTAGE ACT § 9B, U.L.A. 287 (1973); see also POLLOCK AND MAITLAND, supra note 12, at 398. Return to text.

[176] Section 742.12, Florida Statutes, creates a presumption of paternity when an HLA test or other scientific test establishes a 95% or greater probability of paternity. See FLA. STAT. § 742.12(4) (1997). The phrase has been used in earlier cases discussing this statute. See, e.g., Ferguson v. Williams, 566 So. 2d 9, 11 (Fla. 3d DCA 1990); Vidal v. Rivas, 556 So. 2d 1150, 1152 (Fla. 3d DCA 1990); Jones v. Crawford, 552 So. 2d 926, 927 (Fla. 1st DCA 1989); Schatz v. Wenaas, 510 So. 2d 1125, 1126 (Fla. 2d DCA 1987). This presumption is more typically an evidentiary presumption used in the context of a paternity action naming the putative biological father of a nonmarital child. It may also have use in the quasi-marital children context, but, clearly, it is not the presumption of paternity discussed in Daniel. Return to text.

[177] Section 742.10(1), Florida Statutes, allows for a voluntary acknowledgment of paternity that creates a rebuttable presumption of paternity. See FLA. STAT. § 742.10(1) (1997); see also Campo v. Tafur, 704 So. 2d 730, 733 n.1 (Fla. 4th DCA 1998) (noting that an admission of paternity, absent an affidavit, merely creates a rebuttable presumption of paternity); Womack v. Cook, 634 So. 2d 322, 323 (Fla. 5th DCA 1994) (Harris, C.J., dissenting) (opining that until the presumption of paternity is rebutted, the paternity action cannot proceed). Like the presumption for scientific testing, this is an evidentiary presumption for use in a typical paternity action. It is similar to the concept employed in Daniel because the presumption arises from a voluntary admission and not from any biological evidence. Return to text.

[178] See, e.g., Denbow v. Harris, 583 A.2d 205, 207 n.1 (Me. 1990) (stating that the court has "long recognized the distinctions between the meanings of 'legitimacy' as used in the different contexts of inheritance and paternity"). Return to text.

[179] Indeed, Florida's leading case on the presumption of legitimacy is a divorce case similar to Daniel involving a Type I quasi-marital child. See Eldridge v. Eldridge, 16 So. 2d 163 (Fla. 1944). The marital husband in Eldridge was allowed to challenge the presumption, but failed to overcome the difficult burden of proof, as the wife would not concede the issue. See id. at 163-64. In this way, the presumption of legitimacy simply turns into the "presumption of paternity" if the wife concedes that the marital father is not the biological father. Why a presumption of paternity applies when no one claims that a party is a biological father is unclear. Return to text.

[180] The impact of Daniel on a child's right to support and legitimacy is highlighted in DeRico v. Wilson, 714 So. 2d 623 (Fla. 5th DCA 1998), in which a Type II child, identified by name, is effectively declared illegitimate in the opinion. Her mother is ordered to repay child support that was previously provided by the marital father after he petitioned to determine paternity, but while he was still legally married to the mother! Return to text.

[181] Daniel v. Daniel, 695 So. 2d 1253, 1255 (Fla. 1997). Return to text.

[182] For a post-Daniel example of a case in which the wife did not take a consistent position on the paternity of her children, see Gantt v. Gantt, 716 So. 2d 846 (Fla. 4th DCA 1998). Return to text.

[183] Voluntary terminations of parental rights in chapter 39 proceedings require a judicial determination of the child's manifest best interests. See FLA. STAT. § 39.4612 (1997). Return to text.

[184] For example, the husband may threaten the wife to evade child support, and she may prefer to have him out of her life even if that means she will not receive child support. The wife may wish to be rid of her husband forever, and she may threaten to reveal tax fraud, for example, unless he relinquishes the child. Return to text.

[185] Genetic testing now includes methods other than HLA testing. See State Dep't of Revenue v. Aguirre, 705 So. 2d 990 (Fla. 3d DCA 1998). See generally Brim v. State, 695 So. 2d 268 (Fla. 1997) (discussing the admissibility of DNA testing in criminal cases). Return to text.

[186] In the proposed statute, these children are referred to as children born within 40 weeks of marriage. See supra Part II.B.1. for a description of Type I quasi-marital children. Return to text.

[187] In the proposed statute, these children are referred to as children born after a permanent separation. For a description of Type II quasi-marital children, see supra Part II.B.2. Return to text.

[188] In the proposed statute, these children are referred to as children born after 40 weeks of marriage, but prior to a permanent separation. For a description of Type III quasi-marital children, see supra Part II.B.3. Return to text.

[189] Although the statute gives a right of action to a biological father, it gives no rights to the child. The Uniform Parentage Act provides for an action by a child. See UNIF. PARENTAGE ACT, § 4, 9B U.L.A. 287 (1973). Who would actually bring this action for a quasi-marital child is still unclear. The author is not convinced that such an action is warranted for quasi-marital children, even if it is warranted for nonmarital children. Return to text.

[190] See G.F.C. v. S.G., 686 So. 2d 1382, 1383 (Fla. 5th DCA 1997) (holding that a biological father may not pursue a paternity action for rights to a "Type II quasi-marital child" when the couple objects). Return to text.

[191] See CAL. FAM. CODE § 7540 (West 1997). Return to text.

[192] Id. Return to text.

[193] See Hadek, supra note 50, at 82-82 (stating that California's exceptions have effectively "eaten up the rule"); William P. Hoffman, Jr., Recent DevelopmentsCalifornia's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy, 20 STAN. L. REV. 754, 761-65 (1968) (discussing the conflicting goals of nuclear family preservation and individual rights in relation to California's section 7540). Return to text.

[194] 491 U.S. 110 (1989) (upholding CAL. EVID. CODE § 621 (West 1984) (repealed 1994)). Return to text.

[195] See id. at 119-20. Return to text.

[196] See id. at 131. Return to text.

[197] See infra Appendix, § 742.301. Return to text.

[198] See infra Appendix, § 742.301. There are two exceptions to this rule. If a prenuptial or separation agreement exists, the husband is not automatically the legal father at the child's birth. Return to text.

[199] See Brashier, supra note 12, at 134-36 (concluding that an irrebuttable presumption that the husband is the legal father is not always in the child's best interest). Return to text.

[200] See infra Appendix, § 742.305. Return to text.

[201] Type I children are conceived prior to marriage but born after marriage. Return to text.

[202] See infra Appendix, § 742.302. Return to text.

[203] See infra Appendix, § 742.302. Return to text.

[204] See infra Appendix, § 742.302(1). Return to text.

[205] See infra Appendix, § 742.302(1)(b). Return to text.

[206] See infra Appendix, § 742.302(1)(b). Return to text.

[207] See infra Appendix, § 742.302(1)(c). Return to text.

[208] The couple, however, may choose not to file the paternity action after receiving the genetic testing. The couple may, however, allow the marital father to become the legal father by stipulation or by taking no action. Return to text.

[209] 415 So. 2d 818 (Fla. 2d DCA 1982) (holding that a husband could be ordered to support a child regardless of whether the child is his natural child, adopted child, or whether the husband contracted to support the child). Return to text.

[210] This assumes that, unlike the existing statutes, Part II would have specific provisions dealing with support and visitation similar to the provisions in chapter 61, Florida Statutes. Return to text.

[211] See infra Appendix, § 742.302(1)(b). Return to text.

[212] See infra Appendix, § 742.302(2)(a). The action to shift status is identical to an action for Type II children and will not be discussed further in the context of a Type I child. Return to text.

[213] See infra Appendix, § 742.302(2)(b). Return to text.

[214] Department of HRS v. Privette, 617 So. 2d 305, 308 (Fla. 1993). Return to text.

[215] See infra Appendix, § 742.302(2)(b)(2). The clear and convincing standard in Privette is primarily a modernized expression of the strength of the presumption of legitimacy. When a full-term child is born within 40 weeks of the marriage, it is obvious that the child was not conceived within the marriage. No obvious reason exists as to why constitutional due process should compel a high burden of proof when selecting a legal father under these circumstances. See supra note 71 and accompanying text. Return to text.

[216] See infra Appendix, § 742.302(2)(c)(1). Return to text.

[217] See infra Appendix, § 742.302(2)(c)(1). Note that no guardian ad litem is required in this action. If the husband is entitled to be relieved of the status of legal father without shifting that status to another man based upon specific factual findings, there is little or no function for a guardian ad litem in such an action. Return to text.

[218] See FLA. STAT. § 39.4611 (1997). Return to text.

[219] See infra Appendix, § 742.302(2)(c)(2). This refinement addresses another concern raised by Professor Burke. Given that either the husband or wife can seek fatherhood by estoppel, this provision would estop the wife from eliminating a viable functional father when no other man is available to fill that slot. It seems unlikely that a mother would make this request in many cases, but it could occur in the context of a divorce. Return to text.

[220] The proposal may contain an estoppel that is too rigid. Since the mother may not have known that she needed a prenuptial agreement if she was only a few days pregnant, it is possible that "unfit" is too strong and that "best interests" should be the test for both transfer and elimination of paternal rights in these cases. Return to text.

[221] See infra Appendix, § 742.302(2)(b)(1). This provision addresses procedural issues and, therefore, would probably require adoption by the supreme court as a rule of procedure. See FLA. CONST. art. V, § 2(a). Return to text.

[222] As an alternative, it might be sensible for the Florida Legislature to prohibit genetic testing of a child without the consent of both legal parents, if both exist, in the absence of a court order. This would not regulate out-of-state testing. Recently, in Lefler v. Lefler, 24 Fla. L. Weekly D114, D115 (Fla. 5th DCA Dec. 30, 1998), a father, suspicious of the paternity of his ex-wife's child, had blood tests performed during visitation with the child. The testing was conducted without the knowledge or consent of the child's mother. See id. Return to text.

[223] See infra Appendix, § 742.302(2)(e). Return to text.

[224] See Rich v. Rich, 214 So. 2d 777, 779 (Fla. 4th DCA 1968) (holding that constructive service on a nonresident parent is adequate for purposes of due process with regards to trying custody issues). Return to text.

[225] See id. at 779 (noting that child custody is in rem and must be filed where the children are located); Drucker v. Fernandez, 288 So. 2d 283, 283 (Fla. 3d DCA 1974) (indicating that no constructive service is authorized in paternity—apparently due to statutory omission). Return to text.

[226] See infra Appendix, § 742.302(2)(e). Return to text.

[227] Type III children are conceived and born after a married couple has permanently separated. Return to text.

[228] See infra Appendix, § 742.303. Return to text.

[229] See infra Appendix, § 742.303(1). Return to text.

[230] See infra Appendix, § 742.303. Return to text.

[231] See infra Appendix, § 742.303(1). Return to text.

[232] See FLA. STAT. § 61.075(6) (1997) (providing that "[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement"). Return to text.

[233] See infra Appendix, § 742.303(1)(a). Return to text.

[234] See infra Appendix, § 742.303(1)(c). Return to text.

[235] See infra Appendix, § 742.303(1)(b). Return to text.

[236] See infra Appendix, § 742.303(2). Return to text.

[237] See infra Appendix, § 742.303(2)(a). Return to text.

[238] See infra Appendix, § 742.303(2)(b). Return to text.

[239] See infra Appendix, § 742.303(2)(b). Return to text.

[240] See infra Appendix, § 742.303(2)(c). Return to text.

[241] See infra Appendix, § 742.303(2)(e). Return to text.

[242] See Department of HRS v. Privette, 617 So. 2d 305, 308 n.4 (Fla. 1993). Return to text.

[243] Type II children are conceived when the mother is lawfully married and living with the husband. Return to text.

[244] See infra Appendix, § 742.304. Return to text.

[245] See infra Appendix, § 742.304. Return to text.

[246] This proposal assumes that these statutory provisions would be the only method to resolve paternity and parentage. Such an action might be consolidated with a divorce, but these issues would not be resolved within a dissolution proceeding. If probate statutes allowed for inheritance only from a legal father, there would be little, if any, need to resolve paternity issues in probate proceedings. Return to text.

[247] Admittedly, one can imagine cases that encourage such an elimination of status for the legal father of a Type II quasi-marital child. For example, if the wife delivered a child with severe birth defects and the child was obviously not the marital father's, the resulting medical bills could bankrupt the marital father. Some might argue that the marital father should be able to free himself of such a child, but such hard cases will likely be rare. Any exception would be hard to tailor so that it only applied in such extreme cases. Return to text.

[248] See Department of HRS v. Privette, 617 So. 2d 305, 308 (Fla. 1993) (requiring a showing of good faith and that the child's best interest will not be adversely affected before allowing someone to challenge the presumption of legitimacy of a child born in wedlock). Return to text.

[249] See infra Appendix, § 742.304(1). Return to text.

[250] Actions after five years would be possible if the mother married the biological father. Then, even if the child were a teenager, the marital father could permit a voluntary termination of his parental rights, and the biological father could adopt the child in a step-parent adoption. See FLA. STAT. § 63.042 (1997). Return to text.

[251] See infra Appendix, § 742.304(2)(b). Return to text.

[252] See infra Appendix, § 742.304(2)(b). Return to text.

[253] See Privette, 617 So. 2d at 308. Return to text.

[254] See infra Appendix, § 742.304(2)(c). Return to text.

[255] See Privette, 617 So. 2d at 308. Return to text.

[256] See infra Appendix, § 742.304(3)(a)(1)-(7). Return to text.

[257] See FLA. STAT. § 61.13(3) (1997). Return to text.

[258] See Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). Return to text.

[259] Logically, the marital father who is left supporting the child after a divorce might have some right of contribution from the biological father. Such a right, however, would be difficult to implement in the real world. Return to text.

[260] See supra note 71. Return to text.

[261] See infra Appendix, § 742.304(2)(c). Return to text.

[262] See infra Appendix, § 742.304(4)(a). Return to text.

[263] See infra Appendix, § 742.304(4)(b). Return to text.

[264] See, e.g., In re Marriage of Dureno, 854 P.2d 1352, 1355 (Colo. Ct. App. 1992) (visitation of a marital father of "Type II quasi-marital child"); Francis v. Francis, 654 N.E.2d 4, 7 (Ind. Ct. App. 1995) (visitation to a marital father of "Type II quasi-marital children"); Finnerty v. Boyett, 469 So. 2d 287, 296-97 (La. Ct. App. 1985) (possible visitation for a biological father of a "Type I quasi-marital child" despite a stable marriage); Seger v. Seger, 547 A.2d 424, 427 (Pa. Super. Ct. 1988) (visitation of a marital father of a "Type I quasi-marital child"). Return to text.

[265] See infra Appendix, § 742.304(5)(c). Return to text.

[266] The only exception to this statement is the right of the biological father, in conjunction with the husband and wife, to file a section 742.304 action involving "Type II quasi-marital children," after the statute of limitations would normally expire. See infra Appendix, § 742.304 (1). Return to text.

[267] See infra Appendix, § 742.305. Return to text.

[268] See infra Appendix, § 742.305(2). Return to text.

[269] See infra Appendix, § 742.305(1). Return to text.

[270] See infra Appendix, § 742.305(4). Return to text.

[271] See Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (finding, at the time of decision, no state cases awarding substantive parental rights to a biological father of a child born into wedlock); G.F.C. v. S.G., 686 So. 2d 1382, 1386 (Fla. 5th DCA 1997) (reading Privette to hold that the goal of paternity determination is to protect a child's legitimacy and the legal father's relationship with his child); K.S. v. R.S., 657 N.E.2d 157, 161 (Ind. Ct. App. 1995), vacated, 669 N.E.2d 399 (Ind. 1996) (asserting that no cause of action exists to determine paternity by a putative father when the mother conceived the child while married); Girard v. Wagenmaker, 470 N.W.2d 372, 380-81 (Mich. 1991) (holding that a putative father does not have standing to bring an action to determine the paternity of a child in wedlock). Return to text.

[272] See infra Appendix, § 742.305(4)(b). Return to text.

[273] See infra Appendix, § 742.305(7)(b). Return to text.

[274] See infra Appendix, § 742.305(3). Return to text.

[275] See FLA. STAT. § 49.011 (1997). Return to text.

CHAPTER 742: PROPOSED PART III