Certiorari denied. 234 So.2d 145. ERVIN, C.J., and THORNAL, CARLTON, ADKINS and BOYD, JJ., concur.
A child born or conceived during marriage is legitimate, and a person seeking to challenge the child's paternity must overcome the strong, albeit rebuttable, presumption of legitimacy. See In re Adoption of Baby James Doe, 572 So.2d 986, 988 (Fla. 1st DCA 1990) (quoting Knauer v. Barnett, 360 So.2d 399, 403 (Fla. 1978)); see also Smith v. Wise, 234 So.2d 145, 146 (Fla. 3d DCA 1970) ("A child conceived in wedlock, but born after termination of the marriage is legitimate."). The presumption is so strong that it "can defeat the claim of a man proven beyond all doubt to be the biological father."
This presumption is one of the strongest rebuttable presumptions known to law and is based on the child's interest in legitimacy and the public policy of protecting the welfare of the child. See Department of Health Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla. 1993); Dennis v. Department of Health Rehabilitative Servs., 566 So.2d 1374 (Fla. 4th DCA 1990); Barrett v. Reed, 363 So.2d 14 (Fla. 1st DCA 1978); Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA 1970). According to Justice Kogan, "this policy is a guiding principle that must inform every action of the courts in this sensitive legal area."
Indeed, the presumption of that legitimacy is one of the strongest rebuttable presumptions known to the law. Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA), cert. denied, 238 So.2d 422 (Fla. 1970); Dennis v. Department of Health Rehabilitative Serv., 566 So.2d 1374 (Fla. 5th DCA 1990). The law is equally clear that parents may not contract away the rights of their children to support.
Blackstone (1 Blackstone Commentaries 454) defines a bastard in the context of the second problem as "one that is not only begotten, but born, out of lawful matrimony." Florida cases, specifically Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 422 (Fla. 1970), address the third subdivision of the paternity problem and cite and quote from Kowalski v. Wojtkowski, 19 N.J. 247, 116 A.2d 6, 14, 53 A.L.R.2d 556 (1955), that: "`And it matters not that the marital bond was severed before the children were born. A legitimate child "is he that is born in lawful wedlock, or within a competent time afterwards.
Formerly, a woman was not allowed to bring a paternity action against one other than her spouse when she was married at the time the child was conceived. Kennelly v. Davis, 221 So.2d 415 (Fla. 1969); Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA 1970). However, in Gammon v. Cobb, 335 So.2d 261 (Fla. 1976), the Florida Supreme Court receded from Kennelly and allowed a married woman to sue for support benefits for her illegitimate child.
Decisions of other jurisdictions have held that the ordinary period of gestation is a proper subject for judicial notice. See, e.g., Smith v. Wise, 234 So.2d 145 (Fla.Dist.Ct.App. 1970); Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171 (1949); State ex rel. Brown v. Middleton, 259 Iowa 1140, 147 N.W.2d 40 (1966); In re Walton's Estate, 183 Kan. 238, 326 P.2d 264 (1958); Silke v. Silke, 325 Mass. 487, 91 N.E.2d 200 (1950); Suzanne J. v. Russell K., 46 App. Div. 2d 935, 362 N.Y.S.2d 37 (1974); Crawford v. Hasberry, 21 Ohio Op.2d 350, 186 N.E.2d 522 (1962). The defendant next avers that the court erred in charging the jury that if it found that the plaintiff had sexual intercourse with David Libby, it would have to deliberate further as to whether as a result thereof the plaintiff became pregnant.
Appellant objected to the admissibility of that evidence upon the basis that the rule in Florida is a mother may not bastardize her child so she is incompetent as a witness to testify that her child is illegitimate. Appellant relied upon Smith v. Wise, 234 So.2d 145 (Fla. 3rd DCA 1970), and Sanders v. Yancey, 122 So.2d 202 (Fla. 2nd DCA 1960), for that position. However, the rule in Florida that a mother is not permitted to have a child born in wedlock declared to be illegitimate has been changed.
The general rule is that a mother is not competent to testify that her children, born in wedlock, are actually illegitimate. Gossett v. Ullendorf, 114 Fla. 159, 154 So. 177 (1934); Kennelly v. Davis, 221 So.2d 415 (Fla. 1969); Smith v. Wise, 234 So.2d 145 (3d DCA Fla. 1970); Annot. — Rule as Regards Competency of Husband or Wife to Testify As To Nonaccess, 49 A.L.R.3d 212. However, it appears to us that the Supreme Court has in effect changed that rule by holding that a woman who was married to one man when her children were born could sue another man to establish that the latter was the father of her children.
The statute in Florida which changed the common law was F.S. § 742.031, F.S.A. The terms illegitimate child and bastard are synonymous, and our court in Smith v. Wise, 234 So.2d 145, defines "bastard" and "legitimate child," and as authority quotes Kowalski v. Wojtkowski, 19 N.J. 247, 116 A.2d 6, 53 A.L.R.2d 556: "`And it matters not that the marital bond was severed before the children were born. A legitimate child "is he that is born in lawful wedlock, or within a competent time afterwards.