How can a Same Sex Parent Obtain Parental Rights to a Child?

A mother hugs her child as she drops him off at school

Obtaining parental rights to a child you brought into this world seems as if it should be one of the more simple tasks. However, with the advancement in reproductive technology and adoption for same sex couples the court is slow to keep up to date with these changes. In most cases, legal rights are established by the names on a birth certificate, marriage or who has been adjudicated to be a parent by a competent court, through biology or adoption. While having a child born during an intact marriage is a common method of obtaining parental rights, this is only available to lesbian couples, as the statute only refers to the spouse of the mother who gives birth to obtain rights. Therefore, other same sex couples must proceed through many other legal means to obtain legal rights before the court to their own child. Your Florida Child Custody Attorney can assist you during these times and ensure your parental rights are established and protected.

Spousal Rights for Same-Sex Divorce

With so many new marriages forming across the country, many divorces are statistically bound to follow. Same-sex couples now have the same spousal rights during a divorce, including division of property. When getting divorced, individuals may be entitled to an equitable division of the shared assets acquired during the marriage. These assets can include anything of value, from property and vehicles to savings and debt.

Additionally, this ruling carries huge implications for child custody and child support. The rights of same-sex parents will now be equivalent to other parents, and divorced couples can be subjected to the same court-orders on custody and visitation schedules as well. As a result, same-sex couples will now be under the same obligation to pay child support if they do not have primary custody of the child. If the court legally terminates the parental rights of one party, they will no longer be responsible for support but will have no visitation or custody rights.

One of the main avenues same sex couples take to establish parental rights is through adoption, whether that be traditional adoption or step parent. Adoption is applicable to all types of same sex couples, female to female or male to male. Since same sex marriage is state and federally recognized, a same sex couple that is legally married can adopt a child. However, this has not always been the case. Up until 2010, Florida had a ban on homosexual couples adopting. This ban was labeled as unconstitutional, repealed and the official repeal was enacted into law in 2015. Fineout, Gary, Florida Legislature Repeals State Ban on Gay Adoption,(2015). Whether adopting through the Department of Children and Families, or a private agency there is no question about sexual orientation. You will proceed through the normal adoption process, with home visits, interviews, and background checks just as any other couple engaging in adoption would.

Step parent adoption is another avenue same sex couples employ in order to gain parental rights. Some same sex couples bring children into the relationship from prior heterosexual relationships, or if one spouse biologically had the child. If one spouse has children from a previous relationship, the new same sex spouse has no legal right to that child unless an adoption takes place. There are necessary steps that must be taken before a successful step parent adoption has occurred. One factor is that step parent adoptions can only be done between a married couple, as the individual adopting the child must be a legal step parent. This means that the biological parent and the individual attempting to adopt the child must be legally married. Further, if the child being adopted is from a prior relationship where the child already has a mother and a father one of the current parents must sign away their legal rights to the child in order for the new spouse to obtain custody. Fla. Stat. 63.087. Other times, this is not necessary as the other parent has passed away, however this is typically not the case. The waiver of parental rights can be a daunting or even an impossible task if the parent you are attempting to replace is actively involved and wishes to keep parental rights to their child. The waiver of parental rights must be in writing with full understanding by the waiving party as to what they are agreeing to. Id. This waiver must then be filed with the court. Id. If the waiving parent is agreeable to the adoption of the new spouse the process can be done rather quickly usually only needing a 15 minute hearing before a judge. However, if there is push back from the legal parent, you will have a difficult legal battle. If you are wishing to proceed with a step parent adoption, contact your Florida Child Custody Attorney who can walk you through this process and represent your desires to the court.

Surrogacy and artificial insemination are also fairly new ways same sex couples enter into parenthood. In Florida, statute governs the relinquishment of parental rights by the donor or surrogate. Fla. Stat. 742.15. But each of these assisted reproductive techniques are governed by their own set of statutes that lay out the avenue to parental rights.

There are two types of surrogacy recognized in Florida, Gestational and Traditional. Traditional surrogacy takes the same legal steps as an adoption, because the surrogate is the biological mother of the child. These steps include, the surrogate and the parents will enter into an agreement or “preplanned adoption agreement” that terminates the surrogates ’parental rights. Id. After the birth, the parents will then adopt the child through the typical process of adoption.

Gestational surrogacy follows Florida Statute Chapter 742. This process begins with a gestational surrogacy contract prior to the insemination of the surrogate. This contract includes the requirement that the surrogate must relinquish any parental rights she may have and the couple agrees to accept custody of the child. Id. The contract may also include compensation provided to the surrogate for her services. Id. After the birth of the child, the couple must petition the court for an affirmation of parental status. Id. At this hearing, the court will determine the validity of the surrogate contract, the biological connection of at least one of part the couple to the child and the court will enter the couple as the legal and natural parents of the child and will issue the proper birth certificate. Id. To ensure parental rights, it is critical for same sex couples to either use the regulated steps of the Gestational Surrogacy in Florida statute or go through the process of adoption.

In summation, establishing parental rights of same sex couples can be done through an intact marriage or adoption. If neither of these events occur the second parent, who possibly stayed home with the child and raised them as their own for the entirety of the child’s life is left with no legal rights to that child. Therefore, if a divorce occurs that spouse will be left with no visitation rights, no child support obligation and can be removed from the child’s life permanently. Although cases have been brought by a homosexual parent, to the court with the idea of a psychological parent, in an attempt to obtain parental rights to a child these have been overturned with the fundamental right of privacy, and a parent’s right to make decisions about their child without interference from any third party. With no parental rights at birth or through the process of adoption there will be no parental rights in a divorce; leaving the non legal parent with no custody, visitation, or financial obligation to child support. Contact your Florida Child Custody Attorney to begin the process of establishing your legal rights to your child.

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