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Simmonds v. Perkins

Supreme Court of Florida

June 28, 2018

TRENEKA SIMMONDS, et al., Petitioners,


          Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fourth District - Case No. 4D16-3502 (Broward County)

          Victor H. Waite of Law Office of Victor H. Waite, P.A., Hollywood, Florida, for Petitioners.

          Nancy A. Hass of Nancy A. Hass, P.A., Fort Lauderdale, Florida, for Respondent.

          LAWSON, J.

         Treneka Simmonds seeks review of the decision of the Fourth District Court of Appeal in Perkins v. Simmonds, 227 So.3d 646 (Fla. 4th DCA 2017), on the ground that it expressly and directly conflicts with a decision of this Court and decisions of other district courts on a question of law. We agree with Simmonds that Perkins expressly and directly conflicts with Slowinski v. Sweeney, 64 So.3d 128 (Fla. 1st DCA 2011), and Tijerino v. Estrella, 843 So.2d 984 (Fla. 3d DCA 2003), on the question of whether a biological father is entitled to rebut the common law presumption that the mother's husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal. Accordingly, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

         For the reasons explained below, we hold that the biological father has standing to rebut this presumption, known at common law as the "presumption of legitimacy," when he has "manifested a substantial and continuing concern" for the welfare of the child, Kendrick v. Everheart, 390 So.2d 53, 61 (Fla. 1980). We further hold that the presumption is overcome when there is a "clear and compelling reason based primarily on the child's best interests." Dep't of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 309 (Fla. 1993). We, therefore, approve the result reached by the Fourth District in Perkins as well as the reasoning of that decision to the extent it is consistent with this opinion. We disapprove the decisions of the First and Third Districts in Slowinsky and Tijerino.


         It is undisputed that the child at the center of this case is the biological daughter of Connor Perkins.[1] Perkins and the child's mother, Simmonds, engaged in a three-year relationship. While that relationship was ongoing, Perkins was never informed that Simmonds was married to the man who now asserts his status as the child's legal father by virtue of his marriage to Simmonds. That man, Shaquan Ferguson, met Perkins on several occasions while Simmonds and Perkins were together, and yet Ferguson was never held out to be Simmonds's husband. At some point, Perkins knew Simmonds was married, but Simmonds told him that she was married for "immigration purposes" only and intended to get a divorce. In the words of the circuit court, when the child was born, Perkins had "no idea that there was an intact marriage."

         Perkins was at the hospital for the child's birth. It is undisputed that Ferguson was not and that Simmonds declined to provide Ferguson's name to be listed as the child's father on the birth certificate. Simmonds did, however, give the child Perkins's last name, and she proceeded to raise the child with Perkins. For a period of time, Perkins and Simmonds lived together with the child, and during another period of time, the child lived with Perkins without Simmonds, but with the knowledge and consent of Simmonds. Perkins has taken the child to doctor's visits and enrolled the child in day care. Perkins has also regularly and voluntarily paid child support to Simmonds for the child. The child knows Perkins as "daddy." Perkins has also alleged that the child knows and loves his mother as her grandmother.


         It was in this factual context that Perkins decided to file a petition in circuit court to establish paternity, child support, and timesharing. Despite the relationship that had developed between Perkins and the child, Simmonds moved to dismiss the action, arguing that it was barred by the common law presumption of legitimacy because Simmonds was married to Ferguson at the time of the child's birth and remains married to Ferguson. This motion prompted Perkins to name Ferguson as an additional party, amend his petition to add a count seeking the disestablishment of Ferguson's paternity, and allege that it would be in the child's best interests for Perkins to be recognized as her legal father. Like Simmonds, Ferguson moved to dismiss on the basis of the presumption of legitimacy. However, neither Simmonds nor Ferguson disputed that Perkins is the child's biological father.

         Although the circuit court held an evidentiary hearing and found that "[t]he facts strongly" indicate that allowing Perkins to have "some involvement in the child's life" would be in the child's best interests, the circuit court ultimately concluded that it was constrained by Fourth District precedent to dismiss the petition as a matter of law. Quoting Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000), the circuit court concluded that "[a] putative father has no right to [seek to] establish paternity of a child who was born into an intact marriage, when the married woman and her husband object." This inflexible rule of law, the circuit court ruled, barred Perkins's action, even though Perkins is the child's biological father, was at the hospital for the child's birth, has been substantially involved in the child's life since then, and is known to the child as "daddy."

         Perkins appealed the dismissal to the Fourth District, which reversed. Perkins, 227 So.3d at 650. The Fourth District acknowledged that the rule the circuit court applied had been stated in its own case law and applied strictly in other districts but concluded that the other districts misapprehended the nature and effect of the presumption of legitimacy. Id. at 648. ...

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