SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 6D23-1415

Lower Tribunal No. 2018-DR-011064-O

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LOUIS ROMAN OROSCO,

Appellant,

v.

MIGUEL A. RODRIGUEZ and BRITTANY NICOLE DIEHL,

Appellees.

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Appeal from the Circuit Court for Orange County.

Diana M. Tennis, Judge.

December 15, 2023

STARGEL, J.

Appellant, Louis Orosco, appeals the Final Judgment of Paternity adjudicating 

Miguel Rodriguez, Appellee, to be the legal father of the minor child, M.A.R., and 

denying the counterpetition filed jointly by Orosco and Brittany Diehl, the mother.1

 

We conclude that because a paternity test revealed Rodriguez was not M.A.R.’s 

1 This case was transferred from the Fifth District Court of Appeal to this 

Court on January 1, 2023.
2

biological father, he lacked standing to challenge the presumption of legitimacy 

created by Orosco’s marriage to Diehl. Consequently, we reverse.

Background

Orosco married Diehl in 2008. Diehl conceived a child in late 2012, and 

M.A.R. was born in 2013. At the time of conception, Diehl and Orosco had been 

separated for several years with Orosco living out of state; yet, neither one had filed 

for divorce. During one of Orosco’s trips to Florida to visit with Diehl’s older child, 

he and Diehl engaged in sexual intercourse. At that time, Diehl was also in a casual, 

sexual relationship with Rodriguez, and Rodriguez was unaware of Diehl’s “onenight stand” with Orosco. Once she determined she was pregnant, Diehl informed 

Rodriguez he was the father of the child. Diehl told Orosco that he was not the 

father, and he believed her because he and Diehl had engaged in unprotected sex 

during the course of their marriage without conceiving a child. Orosco also believed 

he was divorced from Diehl as he executed “divorce papers” upon her request and 

delivered them to her sometime prior to 2013, but he was unaware Diehl did not 

initiate divorce proceedings. Rodriguez mistakenly believed that Diehl and Orosco 

were divorced as well. At the time of birth, Rodriguez signed M.A.R.’s birth 

certificate and acknowledged paternity. Diehl indicated on the birth certificate 

application that she was a single woman even though she was still married to Orosco.

At some point, the relationship between Diehl and Rodriguez broke down, 

and Rodriguez filed a Petition to Determine Paternity on or about August 22, 2018. 
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A paternity test was conducted shortly thereafter, and the results ruled out Rodriguez 

as the father of M.A.R. Subsequently, Diehl filed a Motion for Joinder of 

Indispensable Party seeking to add Orosco as a party respondent, claiming she was 

married to Orosco at the time of conception and the birth of M.A.R. and that he is 

the legal father. A joint Counterpetition to Determine Paternity and for Related 

Relief was filed by Diehl and Orosco after a paternity test was conducted and 

confirmed Orosco as the biological father of M.A.R. Following a trial in the matter, 

the lower court found there were competing presumptions, and the best interests of 

the child would be served by establishing paternity in favor of Rodriguez under 

section 742.10, Florida Statutes (2018). As such, a final judgment was entered 

finding Rodriguez is M.A.R.’s legal father, and Diehl and Orosco’s counterpetition 

was denied. This appeal follows.

Analysis

Whether Rodriguez has standing to challenge paternity is reviewed under the 

de novo standard. See Ransom v. Grant-Van Brocklin, 326 So. 3d 164, 166 (Fla. 3d 

DCA 2021) (“Standing is a pure question of law and therefore must be reviewed de 

novo.” (citing Sanchez v. Century Everglades, LLC, 946 So. 2d 563, 564 (Fla. 3d 

DCA 2006))). Further, a trial court’s interpretation and application of a statute is 
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reviewed de novo. McGovern v. Clark, 298 So. 3d 1244, 1248 (Fla. 5th DCA 2020) 

(citing B.Y. v. Dep’t of Child. & Fams., 887 So. 2d 1253, 1255 (Fla. 2004)).

The trial court found there were competing presumptions of paternity—a 

presumption in favor of Rodriguez pursuant to section 742.10, and a common law 

presumption of legitimacy in favor of Orosco as a result of his continuing marriage 

to Diehl. Finding that Rodriguez was the only meaningful father the child has ever 

known, the trial court determined that the best interests of the child would be served 

by establishing him as the child’s legal father.

Section 742.10, titled “Establishment of paternity for children born out of 

wedlock,” reads, in pertinent part as follows:

If an adjudicatory proceeding was not held, a notarized

voluntary acknowledgment of paternity or voluntary 

acknowledgment of paternity, which is witnessed by two 

individuals and signed under penalty of perjury as 

specified by s. 92.525(2), creates a rebuttable

presumption, as defined by s. 90.304, of paternity and is 

subject to the right of any signatory to rescind the 

acknowledgment within 60 days after the date the 

acknowledgment was signed or the date of an 

administrative or judicial proceeding relating to the child, 

including a proceeding to establish a support order, in 

which the signatory is a party, whichever is earlier.

. . . . 

After the 60-day period referred to in subsection (1), a 

signed voluntary acknowledgment of paternity shall 

constitute an establishment of paternity and may be 

challenged in court only on the basis of fraud, duress, or 

material mistake of fact, with the burden of proof upon the 

challenger, and under which the legal responsibilities, 
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including child support obligations of any signatory 

arising from the acknowledgment may not be suspended 

during the challenge, except upon a finding of good cause 

by the court.

§ 742.10(1), (4) (emphasis added). Although Rodriguez signed the birth certificate 

and voluntarily acknowledged paternity at the time the child was born in 2013, Diehl 

was still married to Orosco. A statute must be given its plain and ordinary meaning 

when its language is clear and unambiguous. Maloy v. Seminole Cnty., 264 So. 3d 

370, 372 (Fla. 5th DCA 2019). The first sentence of section 742.10 states “this 

chapter provides the primary jurisdiction and procedures for the determination of 

paternity for children born out of wedlock.” (emphasis added). M.A.R. was not born 

out of wedlock.2

Even though it was undisputed that Orosco and Diehl were still married, the 

trial court found that the marriage between Diehl and Orosco was “the least intact 

marriage possible, short of filing for a divorce.” However, section 742.10 does not 

carve out an exception that would apply to children born during a damaged or failing 

marriage. Simply put, “[a]n intact marriage has been described as ‘the existence of 

a marriage without the pendency of divorce proceedings.’” Nevitt v. Bonomo, 53 So. 

2 Section 382.013(2)(a), Florida Statutes, requires “the name of the husband 

shall be entered on the birth certificate as the father of the child, unless paternity has 

been determined otherwise by a court of competent jurisdiction.” This was not done 

because Diehl, either fraudulently or mistakenly, represented herself on the birth 

certificate application as a single woman. While the trial court found Diehl 

fraudulently represented herself as a single woman, whether it was a mistake or fraud 

does not change the analysis here. 
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3d 1078, 1082 (Fla. 1st DCA 2010) (quoting Lander v. Smith, 906 So. 2d 1130, 1134 

(Fla. 4th DCA 2005)). There were no divorce proceedings pending between Diehl 

and Orosco at that time; therefore the marriage was intact. Although both Orosco 

and Rodriguez may have believed Diehl was divorced from Orosco, the fact remains 

that she was not. As such, section 742.10 is inapplicable, and a presumption of 

legitimacy exists as a result of Orosco and Diehl’s marriage.

Still, a child’s biological father has standing to rebut the presumption of 

legitimacy when he has manifested a substantial and continuing concern for the 

welfare of the child, and the presumption is overcome when there is a clear and 

compelling reason based primarily on the child’s best interests. Simmonds v. 

Perkins, 247 So. 3d 397, 398 (Fla. 2018); see also Kendrick v. Everheart, 390 So. 

2d 53, 61 (Fla. 1980). The distinction here is that Rodriguez is not M.A.R.’s 

biological father; consequently, there is no established pathway for him to make a 

claim for paternity. See, e.g., Russell v. Pasik, 178 So. 3d 55, 59-61 (Fla. 2d DCA 

2015) (“[T]hose who claim parentage on some basis other than biology or legal 

status do not have the same rights, including the right to visitation, as the biological 

or legal parents. . . . [I]f the definition of a parent is to be expanded to fit facts such 

as those in this appeal . . . then a policy change of this magnitude must be instituted 

by the legislature, not the courts.”); Kazmierazak v. Query, 736 So. 2d 106, 110 (Fla. 

4th DCA 1999) (holding that a “psychological parent” did not have standing to seek 

judicial intervention for custody or visitation).
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Orosco, as the mother’s husband, was established as the child’s legal father 

without the need for any adjudication of the fact of fatherhood. See Simmonds, 247 

So. 3d at 402 (“Indeed, the presumption [of legitimacy] still serves at least one 

important function that it served at common law: giving children born to intact 

marriages legal fathers without the need for any adjudication of the fact of 

fatherhood.” (citing G.F.C. v. S.G., 686 So. 2d 1382, 1384-85 (Fla. 5th DCA 1997))). 

Pursuant to section 742.12(4), in any proceeding to establish paternity, “[i]f the test 

results show the alleged father cannot be the biological father, the case shall be 

dismissed with prejudice.” After being ruled out as the biological father of M.A.R., 

Rodriguez no longer had standing to pursue this paternity action and the case should 

have been dismissed with prejudice. Accordingly, we reverse and remand for further 

proceedings consistent with this opinion. 

REVERSED and REMANDED.

SMITH and BROWNLEE, JJ., concur.

Andrew T. Windle, of The Windle Family Law Firm, P.A., Orlando, for Appellant.

Joy R. Knight, of The Joy Law Firm, LLC, Winter Park, for Appellee, Miguel A. 

Rodriguez.

No Appearance for Appellee, Brittany Nicole Diehl.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING 

AND DISPOSITION THEREOF IF FILED