In Florida, a biological father has no rights to a child if the child was born to a mother while she was in an “intact” marriage with another man. Florida basically believes that it is in the best interest of the child to be considered a child of the marriage, rather than to be born a “bastard” (courts actually use this word in the case law).

I worked on a case that turned on this rule a few years ago. I represented the biological father. The Court refused to grant my client any rights to his own child because the child had been conceived while the Mother was supposedly in an “intact”marriage. Theparties had actully already been granted a divorce before the child was born, however, the Husbandwas able to set aside the divorce decree just in time tobe able to provide his consent (as the husband and “legal” father of the child) to the child being adopted! Yes, the Mother did not even want the child, and still the Court found the bio dad had no rights. This resulted in the child being adopted by complete strangers rather than being permited to be raised by his biological father. Crazy case.

A case which confirmed this same rule recently came out of the 5th DCA,Pena v. Diaz, 5D12-4504 (Fla. 5th DCA November 8 ,2013) (see it online at Similar set of facts — except here, the parties dismissed their divorce for the sole purpose of the Court deeming their marriage “intact” so they could fend off the bio dad and prevent him from having any rights to his child. The Court held that even though the parties had filed for divorce, once they dismissed the case it was as if it had never occurred and, therefore, the marriage is to be considered “intact.” Once again, the bio dad granted no rights to his own child. Unbelievable.


*5th DCA case courtesy of Michae Mattson, Esquire, Family Law Mediator,

CategoryFamily Law

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