MARTINEZ
v.
VALERIO
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A putative father has the right to bring a paternity action to establish parental rights when he manifests substantial and continuing concern for the children's welfare, and the presumption of legitimacy does not bar such action at the outset.
[1] The presumption of legitimacy in a child born to an intact marriage is rebuttable and does not bar a paternity action at the outset; instead, a putative father may establ…
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Join FLexlaw to unlock all legal intelligence“the biological father of a married woman's children has the right to bring an action to establish his parental rights as the father as long as he has 'manifested a substantial and continuing concern for the welfare of the children.'”
Court's statement of the rule for establishing standing in paternity actions following Simmonds v. Perkins
Appellant Martinez sought review of an order dismissing his paternity petition against Valerio and Ortega. The circuit court dismissed the petition un…
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Third District Court of Appeal
State of Florida
Opinion filed October 10, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-1731 Lower Tribunal No. 17-1358
________________
Francisco X. Martinez,
Appellant,
vs.
Maria Guadalupe Valerio and Antonio Ortega,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.
Yinet Pino P.A., and Yinet Pino; A. Fiallo Law Office, and Arnaldo Fiallo, for appellant.
Cristobal D. Padron & Assoc. P.A., and Cristobal D. Padron, for appellees.
Before SALTER, EMAS, and LOGUE, JJ.
LOGUE, J.
ON MOTION FOR REHEARING
Upon consideration of Appellant Francisco X. Martinez’s Motion for
Rehearing, we withdraw this Court’s opinion issued June 27, 2018, based on the
Supreme Court of Florida’s opinion in Simmonds v. Perkins, 247 So. 3d 397 (Fla.
2018), and substitute the following opinion in its stead.1
Appellant sought review of the entry of an order dismissing his paternity petition under Tijerino v. Estrella, 843 So. 2d 984 (Fla. 3d DCA 2003) (“A putative father does not have standing to seek to establish paternity of a child,
where the child was born into an intact marriage, and where the married woman and her husband object to the paternity action.”), without first conducting an evidentiary hearing to determine whether he had standing to maintain the petition.
This Court affirmed.
In Simmonds, the Supreme Court of Florida disapproved Tijerino and unequivocally opined that “the presumption of legitimacy is rebuttable,” and “does not bar an action to prove paternity at the outset.” Simmonds, 247 So. 3d at 403.
Rather, to maintain a paternity petition where the presumption of legitimacy is in question, one must establish standing to bring the action; meaning “the biological father of a married woman’s children has the right to bring an action to establish his parental rights as the father as long as he has ‘manifested a substantial and
continuing concern for the welfare of the children.’ ” Id. at 401, 402 (quoting
Kendrick v. Everheart, 390 So. 2d 53, 61 (Fla. 1980)).
Accordingly, we withdraw this Court’s opinion issued June 27, 2018, grant
Appellant’s Motion for Rehearing, and reverse and remand the cause for further proceedings consistent with this opinion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kendrick v. Everheart, 390 So. 2d 53 (Fla. 1980)
- Treneka Simmonds v. Connor Perkins, 247 So. 3d 397 (Fla. 2018)
- Teofilo C. Roblero v. State, 843 So. 2d 984 (Fla. 4th DCA 2003)
- Pastor Tijerino v. Derlin P. Estrella, 843 So. 2d 984 (Fla. 3d DCA 2003)