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Florida law not equipped to handle same-sex custody disputes

In the last couple of years, Florida has seen a rise of same-sex couples enter the courts with disputes over the custody of children born into the household. Generally, this applies to female relationships in which one of the women has given birth to a child or children. However, the other partner often feels that the child is hers too, and this can put the courts in an unprecedented position of trying to interpret what the law allows and does not allow.

In 2011, a woman sought child custody of the little girl her former partner gave birth to. The woman provided the egg, which was fertilized and the partner carried the baby. However, when the couple broke up after the child was born, the relationship between the two parents quickly deteriorated, forcing the woman to seek help in a Florida court.

Establishing a legal claim

The woman in the above story apparently did not seek to formally adopt the child, believing that as the egg donor, she was a biological parent. However, it was decided by a judge that the woman had no legal claim on the baby, based on existing state law.

In a more recent case, a Florida judge ruled that two females and a biological father would be listed on a baby's birth certificate. In this case, the father, a sperm donor, and the non-biological female parent took steps to legally adopt the child, thereby establishing a legal connection to the child. The decision to formally recognize all three people as legal parents may be of use later if the women's relationship breaks up and custody becomes an issue.

Until Florida law is updated to reflect the changing demographics of families, it is important for non-biological parents to use existing law to protect their rights and their children. According to the National Center For Lesbian Rights, this can often be accomplished in a variety of ways:

  • Formal adoption
  • Establishing a paper trail showing the intent to be a parent
  • Having a parenting plan drawn up by an attorney
  • Entering into a legal contract before the child is conceived

The child's best interests

Another path that non-biological parents can take, if there is no legal right established, is to show the court that it would not be in the child's best interests to be separated from the parent. This has worked in a Florida court before when a non-biological parent won the custody of a child born in a same-sex relationship. The biological parent in that case had died and th e child was adopted by the grandparents without the other parent's knowledge. However, the child had separation problems as a result, and a judge ruled that it would be in the best interest of the child to return her to her non-biological parent.

If it can be shown that a child's biological parent is not fully equipped or capable of taking care of the child, a non-biological parent may be able to convince a Florida court to grant them custody.

Custody issues involving same-sex couples can be complicated and therefore, it would be best for a non-biological and non-legal parent to seek the guidance of a custody attorney in their area.

Meet Michael Leininger

Meet Michael Leininger

Attorney Michael R. Leininger began his legal career in real estate law and commercial law serving small businesses in a variety of ways.

Known for his rigorous attention to detail and his commitment to being overly-accessible at all times, he is a lawyer with unwavering honesty, fairness and integrity.

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