What is the difference between a legal father and a biological father?
A family
law case is before the Florida Supreme Court right now that is quite
interesting. The court must decide a
dispute between a child’s legal father and her biological father.
You see, in Florida,
when a child is born of a marriage, the legal father is the man married to the
mother. The legal father, therefore, may
not be the biological father. Thus, the
biological father may not have any rights to the child.
This presumption of legitimacy is based on the public policy
of protecting the welfare of the child. Prior
to DNA testing, there was no scientific way of knowing biologically who the
father was. It was presumed that the
husband was the father. This presumption protected the welfare of the
child. In cases of divorce, the child had
protections of child support and health care. The law has not kept up with the
science.
As the law is currently, a legal father who is not a biological
father would have to agree to release his rights and there would have to be a
dissolution of marriage for a biological father to begin the process to become
the legal father. If the legal father is
not willing to disestablish his rights, a paternity action
would ensue. If the legal father and
mother wish to remain married, then the biological father cannot become the legal
father.
This very issue is what the current
case before the Florida Supreme Court is about. The biological father is asking the court to
grant him shared custody and parenting rights with the legal father and mother,
as they remain a married couple.
Ultimately, the Florida legislature, as well as all state
legislatures, are going to have to modernize the law to keep up with scientific
developments.