FLORIDA FAMILY LAW
For Gay, Lesbian, Bi-Sexual and Transgender Persons
Copyrighted by William D. Slicker
In Florida, the biological parents of a child have primary rights to parental responsibility (custody) and time-sharing rights (visitation). For a same sex oriented person, this means that their rights to time with a child that they have parented may depend on whether they entered into a traditional marriage and then they “came out” later in life or whether they bypassed a traditional marriage and entered into a same sex relationship earlier in life.
I. Later in Life Decision
The general rule in Florida is that a parent’s sexual orientation alone is not grounds to deny that parent parental responsibility (custody) or time-sharing rights (visitation). There must be a showing that the parent’s sexual conduct has a direct adverse impact on the child. See Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975) dealing with a parent involved in an adulterous relationship.
Accordingly, a woman who marries a man, has children, and then leaves the marriage to pursue a lesbian relationship may not be denied parental rights solely because she is lesbian. Jacoby v. Jacoby, 763 So. 2d 410 (Fla. 2d DCA 2000).
Likewise, a bi-sexual woman who has children during a marriage and then gets divorced, may not be denied parental rights solely due to her bi-sexuality. Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996).
Further, a bi-sexual woman who marries a man, has children, and then lives in a ménage a trois, may not be denied parental rights in a divorce solely due to her sexual conduct. Packard v. Packard, 697 So. 2d 1292 (Fla. 1st DCA 1997).
II. Earlier in Life Decisions
In Florida, gay, lesbian, bi-sexual, or transgender persons who enter into relationships without a tradition marriage will face an uphill battle for parental rights if they are not the biological parent.
In 1976, Florida passed a statute that prohibited clerks of the courts from issuing marriage licenses unless one party is male and the other is female. Sec. 741.04, Fla. Stat. In 1997, Florida enacted a statute that prohibits recognition of same sex marriages even if the couple was married in another jurisdiction where such a marriage was legal. Sec. 741.212, Fla. Stat. In 2008, Florida amended its state constitution to define marriage as the legal union between one man and one woman. Art I § 27, Fla. Const.
The statute prohibiting marriage between persons of the same sex has been interpreted by a Florida appellate court as prohibiting marriage between a woman and a transsexual who has been born a woman, but medically altered into a male. The court chose to follow the decisions of other states that had refused to recognize transsexual marriages rather than follow the view of an Australian Court that has recognized a transsexual marriage. The Florida court held that a person’s sex for purposes of marriage is determined by their biological sex at birth. Kantaras v. Kantaras, 884 So 2d 155 (Fla. 2d DCA 2004).
The statute prohibiting recognition of a same-sex marriage performed in another state has been upheld by a Federal district court. Wilson v. Ake, 354 F. Supp 2d 1298 (M.D. Fla. 2005).
In the absence of a valid marriage, there have been a variety of legal theories that have sought court determination as to who has a right to parental responsibility (custody) and time-sharing rights (visitation) in a same sex relationship.
In the 1960’s the concept of psychological parent arose. A psyhchological parent was not a biological or adoptive parent, but was thought of by the child as a parent due to the adult taking on the responsibilities of a parent with the child. However, Florida’s courts did not adopt the psychological parent concept as a basis to claim parental rights by step-parents. Meeks v. Garner, 598 So. 2d 261 (Fla 1st DCA 1992); Taylor v. Kennedy, 649 So. 2d 270 (Fla. 5th DCA 1994). This denial of standing was extended to the non-biological partner in a lesbian relationship so that she could not seek custody or visitation. Music v. Rachford, 654 So. 2d 1234 (Fla. 1st DCA 1995); Kazmierazak v. Query, 736 So. 2d 106 (Fla. 4th DCA 1999).
Even a written agreement between two lesbians, which provided that even though only one of them was the biological parent of a child through artificial insemination, that they would both be treated as recipients and as co-parents, was not recognized by a Florida court as sufficient to give the non-biological partner standing to seek custody or visitation. It was held to be an unenforceable agreement. Wakeman v. Dixon, 921 So. 2d 669 (Fla 1st DCA 2006).
Recently, there has been a case in which an appellate court found (by a two to one split) that a lesbian who was the biological mother and her lesbian partner who was the birth mother both had parental rights and responsibilities to the child born out of that relationship. In that case, one woman provided an egg that was artificially fertilized by a reproductive donor and then implanted into the other woman who carried the fetus and delivered the child. T.M.H. vs. D.M.T., ___ So. 3d ____,. Case 5D09-3559 (Fla. 5th DCA 2011).
To view a young man raised by two lesbians in Iowa speaking to legislators, go to http://abcnews.go.com/Health/zach-wahls-son-lesbians-speech-anti-gay-legislators/story?id=12832200
Florida Statute 63.042(3) prohibited adoption by same sex persons. The statute survived an earlier attempt to have the statute declared unconstitutional Lofton v. Secretary of Dept. of Children & Family Services, 358 F. 3d 804 (11th Cir. 2004), rehearing en banc denied, 377 F.3d 1275 (11th Cir. 2004). However, Florida courts have subsequently found the statute to be unconstitutional. Florida Dept of Children & Families v. Adoption of X. X. G., 45 So. 3d 79 (Fla. 3d DCA 2010); In re Adoption of Doe, 16 FLW Supp 49 (Fla. 11th Cir, 2008); In re Doe, 16 FLW Supp 75, (Fla. 16th Cir. 2008).
Florida law only permits adoptions by (1) a husband and wife jointly (2) one unmarried adult or (3) a step-parent married to one of the biological parents. Sec. 63.043, Fla. Stat.
There are other states that have allowed the same sex partner to adopt the child of the biological parent. A Florida appellate court has recognized that type of out-of-state adoption and granted parental rights to the adopting same sex partner. Embry v. Ryan, 11 So. 3d 408 (Fla. 2nd DCA).
Therefore, perhaps the safest way for a non-biological parent to protect his or her parental rights is to adopt the child in a state that allows such adoptions.
IV. Domestic Violence
Domestic violence happens in same sex relationships just as it does in opposite sex relationships. For a book about abuse in lesbian relationships, read Naming the Violence: Speaking Out About Lesbian Battering by Kerry Lobel, Free Press, 1986.
If you are suffering from domestic violence or know someone who is, please contact your local domestic violence shelter.
Since this article was written, Florida’s constitutional prohibitions and its statutory prohibitions against same-sex marriages have been stricken as unconstitutional in Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014). The opinion stayed the effect of its opinion to give the defendants time to seek any further relief from the Eleventh Circuit Court of Appeals. That stay expired January 6, 2015 and same sex couples were married in Florida in several different counties. Then the Supreme Court of the United States issued its opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) which struck down the prohibition against same sex marriages.