ROBERT SACKS, APPELLANT,
v.
CONSTANCE ANN HOLLIS SACKS, APPELLEE
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In a divorce proceeding with a counterclaim for child support, the Florida appellate court reversed the trial court's determination that the appellant was the biological father of a child born during the appellee's marriage to another man, holding that Florida law does not permit a married woman to establish paternity against a man other than her spouse at the time of conception or birth.
No. A woman cannot maintain an action to have a man other than her spouse at the time of conception declared to be the father of a child born or conceived while she was married, and therefore the trial court erred in declaring the appellant to be the father and ordering child support payments.
[1] A mother cannot maintain an action to declare a man other than her spouse at the time of conception to be the father of a child conceived and born during her marriage.
[2] A woman married at the time of a child's conception and birth cannot bring an action to declare the child illegitimate and seek support from its putative father.
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Join FLexlaw to unlock all legal intelligence“The study of the cases and the statute leads us to conclude that Section 742.011, Fla.Stat, F.S.A., does not permit a woman to have her child declared illegitimate and thus receive support for said child from its putative father if she was married to another person at the time of conception.”
Establishes the core holding that married women cannot seek paternity declarations against men other than their spouse at the time of conception.
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Join FLexlaw to unlock all legal intelligenceThe appellant and appellee cohabited, then married after the appellee was divorced from Charles Hollis. The appellee had given birth to a child (Debor…
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This appeal arises out of a suit for divorce by the appellant and a counterclaim for child support and maintenance by the appellee.
It appears that the appellee alleged that the appellant fathered the child involved herein while the appellee-counter-claimant was the wife of one Charles Hollis. After the birth of the child appellee was divorced from Hollis. She and the appellant immediately entered into marriage following their extended cohabitation. The parties separated after several years of marriage. The appellant sued for divorce and the ap-pellee counterclaimed for support and maintenance for Deborah Sacks, the child allegedly born of their relationship.
The circuit court granted a divorce and decreed that the appellant is the father of *573Deborah and that he pay to appellee $25.00 per week for the child’s support and maintenance.
Appellant seeks reversal of that portion of the decree declaring him to be the father and requiring him to pay toward the support of the child. The point raised on appeal is whether the mother of a child conceived in wedlock and born in wedlock can maintain an action to declare a man other than her spouse at the time said child was conceived and born to be the father of the child.
The Florida Supreme Court has stated unequivocally:
“The study of the cases and the statute leads us to conclude that Section 742.011, Fla.Stat, F.S.A., does not permit a woman to have her child declared illegitimate and thus receive support for said child from its putative father if she was married to another person at the time of conception.”
Kennedy v. Davis, Fla.1969, 221 So.2d 415, affirming Fla.App.1968, 216 So.2d 795, cert. den. (1969), 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193. This court has emphasized that:
“The mother of a child born in wedlock, or conceived while she was married (which includes a child born ‘within a competent time afterwards’), cannot maintain an action to have a man other than her spouse [at that time] declared to be the father of the child. [Citations omitted.]”
Smith v. Wise, Fla.App.1970, 234 So.2d 145. The law of Florida is clear that a woman under the circumstances herein does not have a cause of action.
Upon the authorities cited, we hold that the trial court erred in declaring the appellant to be the father of Deborah and requiring him to make payments for the support of the child.
Reversed.
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Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972)…ADKINS, Justice. We have for review by petition for writ of certiorari, a decision of the District [*75] Court of Appeal, Third District. Sacks v. Sacks, 254 So. 2d 572 (Fla.App.3d, 1971). This cause arose when the respondent, Robert Sacks, instituted divorce proceedings against petitioner, Constance Ann Hollis Sacks, who counterclaimed for child support and maintenance. The Circuit Court granted the divorce, decl…
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T.D.D. v. M.J.D.D., 453 So. 2d 856 (Fla. 4th DCA 1984)…ising the issue, this should be the end of the matter. In the alternative, should he determine that estop-pel does not lie, then the questions of parentage, custody, visitation and the best interests of the child must be decided. See Sacks v. Sacks, 254 So. 2d 572 (Fla. 3d DCA 1971), quashed, 267 So. 2d 73 (Fla.1972); Taylor v. Taylor, 279 So. 2d 364 (Fla. 4th DCA 1973); Wills v. Wills, 399 So. 2d 1130 (Fla. 4th DCA 1981); Marshall v. Marshall, 386 So. 2d 11 (Fla. 5th DCA 1980). Therefore we grant certiorari…
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V. S. v. B. M., 281 So. 2d 587 (Fla. 2d DCA 1973)…he child was not a child of such marriage. By virtue of prior case law the mother is not allowed before us or the trial court to enable us to draw any such assumption. See, also, Kennelly v. Davis, 216 So. 2d 795 (3d D.C.A.Fla.1968); Sacks v. Sacks, 254 So. 2d 572 (3d D.C.A.Fla.1971); Lorenz v. Jiminez, 163 So. 2d 500 (3d D.C.A.Fla.1964). The appellant relies on B. S. B. v. B. S. F., 217 So. 2d 599 (2d D.C.A.Fla.1969), but that case, on a close examination, is clearly not in point. There is a vast difference…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. Wise, 234 So. 2d 145 (Fla. 3d DCA 1970)
- Kennelly v. Davis, 221 So. 2d 415 (Fla. 1969)
- Demes v. California, 396 U.S. 916 (U.S. 1969)
- Kennelly v. Davis, 216 So. 2d 795 (Fla. 3d DCA 1968)
- Milne v. Shell Oil Co., 396 U.S. 916 (U.S. 1969)