Father has visitation rights even though Mother married to someone else when child is born

In the case of L.J. v. A.S., 25 So.3d 1284 (Fla. 2nd DCA 2010), the court granted a biological father the right to get time-sharing with his child, even though the mother was married to someone else at the time of birth.

The father, L.J., is the undisputed biological father of a child born to the mother, A.S., while she was married to M.A., a foreign national. The mother and M.A. were married on October 22, 2002, and the mother instituted divorce proceedings less than two months thereafter. While the divorce proceedings were pending, the mother and L.J. had intimate relations that resulted in the conception of the child at issue. Thereafter, L.J. was regularly involved in the child's life, exercised visitation and paid child support. The father, L.J., regularly attempted to obtain a paternity determination but met with dismissals of his actions for lack of standing because the child had been born during the mother's marriage to another man and the mother's refusal to institute an action to terminate or disavow the legal father's rights despite the fact that the legal father was, according to the mother, "no where to be found." 

The District Court reversed:

1. "We agree with the circuit court that L.J. has suffered from 'truly an unfortunate chain of events,' so much so that to deny him an opportunity to succeed in this endeavor will certainly create a manifest injustice both of him and his child."

2. "The child at issue here has a biological father willing, able, indeed eager, to parent and support his offspring; a legal father who apparently is not; and a mother who apparently wishes to deprive the child of a real father by declining to institute proceedings to divest her ex-husband of his legal parental rights."

3. "[W]e conclude the circuit court erred in dismissing L.J.'s petition with prejudice based on lack of standing as a matter of law and without a hearing to afford L.J. the opportunity to establish his standing…. Give what we understand to be the background of this case, that should be a first hurdle easily overcome. Once his standing is established, the substantive issues of paternity, custody and other relief can be decided."