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South Florida Father Wins Paternity Battle Regarding Child Whose Mother Was Married to Another Man

Happy_child_finds_joy.jpgIn television’s daytime soap operas, familial relationship dynamics can be complex, and tracing one’s family tree sometimes is… challenging. In the real world, when your child is the product of a non-traditional situation, this can sometimes greatly heighten the hurdles you face when it comes to obtaining and exercising your rights to be a part of your child’s life. One father recently obtained some good news when the 4th District Court of Appeal reinstated his paternity order, ruling that the child’s mother could not contest that order based upon her having been married to another man at the time of the child’s birth.

The case revolved around the paternity of C.M.D., a child born to Ruby Kane. Kane, at the time of C.M.D.’s birth, was known as Ruby Struber and was married to Christopher Struber. C.M.D.’s biological father, however, was Jordan Drouin.

In general, when a child is born to a married woman, Florida law presumes that the father of that child is the woman’s husband. That presumption can be overcome, but it requires obtaining a court order. In 2011, Drouin went to court seeking an order to declare him the child’s legal father. The court entered the order.

Three years later, the mother went to court to get the paternity order thrown out. She argued that, since C.M.D. was born during her marriage to Struber, Struber was the presumptive father, and Drouin had no right to seek a paternity order. The trial court threw out the paternity order, deciding that, given the mother’s marital status at the time of the child’s birth, a paternity order could only be valid if the mother’s husband was named as a party to the case and given notice of the action. Since Drouin neither named Struber in the 2011 paternity action, nor gave him notice of the case, the order naming Drouin the legal father was void.

The appeals court, however, reversed that ruling and ordered Drouin’s paternity order reinstated. The problem with the mother’s case was that her winning the argument in the lower court (that Drouin improperly failed to include Struber as a party in the 2011 paternity case) rested upon a conclusion that the paternity order violated Struber’s right to due process of law. Whether or not the failure to name Struber and give him notice of the paternity action amounted to a violation of Struber’s constitutional rights was irrelevant. As Drouin’s lawyer successfully argued in the appeal, the only person who could assert that claim was Struber himself, not his ex-wife. Since Struber elected not to challenge the paternity order naming Drouin as the child’s legal father and assert his right to challenge the due process violation, the trial court was not entitled to invalidate the order on that ground.

Sometimes, asserting your right to parent your child can be difficult, depending on the nature of your relationship with the child’s other parent. If you face a complex paternity case, you need experienced legal counsel on your side. Consult the South Florida family law attorneys at Sandy T. Fox, P.A. Our knowledgeable and determined advocates can help you navigate the legal process and obtain the court orders you need to take an active role in your child’s life.

Contact us online or by calling (800) 596-0579 to schedule a free and confidential consultation.

More blog posts:

Dealing with Paternity Issues When a Wife’s Extramarital Affair Produces a Child, Fort Lauderdale Divorce Lawyer Blog, Oct. 13, 2014
Father Denied Paternity Rights in Florida Courts, Fort Lauderdale Divorce Lawyer Blog, Aug. 21, 2013

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