What are the Parental Rights to a Child Born During a Same Sex Marriage?

A young girl with blonde hair holds her parent's hand as they walk down a train platform

With the advancement in scientific reproduction, as well as the nature of the legal definition of parents and partners changing, the course of parenthood of same sex couples is a newly developing field. Most same sex parents, 68%, are raising biological children. While only 21% are raising adopted children. Goldberg, Shoshana, Conron, Kerith, How Many Same Sex Couples in the U.S. are Raising Children? (2018). Only half of the same sex couples who are raising children are legally married. Id. Determining parental rights for any type of couple can be a task, however, 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. If you are a same sex couple engaging in a child custody dispute or a divorce proceeding involving minor children ensure you are protected and seek out the assistance of a knowledgeable Florida Child Custody Attorney.

One way to establish parental rights to a child is to have a child born during an intact marriage. Both the spouse of the mother, and the mother herself are presumed to be the legal parents of a child. However, this statute applying to homosexual couples is a recent development. When determining a legal father, most children would fall under Florida Statute Section 382.013(2)(a):

“If the mother is married at the time of birth, 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.”

Therefore, it is presumed the husband is the father of the child if the child is born during an intact marriage. Many courts interpreted this statute literally as requiring a husband and a wife, rather than a wife and wife or husband and husband. For many years, Florida rejected the idea of same sex marriage and did not allow the second wife who did not give birth to the child to place her name on the birth certificate nor did they give a presumption of a spouse being the legal parent of the child. That left the spouse who did not give birth to the child to be without any legal parental rights.

It was not until 2017 that homosexual couples were entitled to place both spouses’ names on the birth certificate. This occurred through a settled case between two lesbian couples and Florida State Officials. Before the settlement of this case, Florida law was read literally and instructed Florida’s Bureau of Vital Statistics only to allow a mother and her husband to be placed on a child’s birth certificate. Pickett, Alex, Florida Agrees to Recognize Same Sex Couples on Birth Certificates, (2017). Although this case never had its day in court, the parties settled and the same sex couples were granted corrected birth certificates dating back even prior to the federal acceptance of same sex marriage in 2015. Id. With names present on the birth certificate, and the child born during an intact marriage, the homosexual spouses can obtain legal rights to the child whether containing their biological make up or not.

Therefore, if you are a homosexual couple who had a child during the time of your marriage, you presumptively have legal rights to the child and the court can proceed with the parental timesharing plan, child custody and child support in your case. However, if you are in a situation where you were not married when the child was born you will need to seek out alternative options to determine your legal parental rights. Our Florida Child Custody Attorneys are able to assist in either situation, and are knowledgeable of the changing laws and custody issues affecting same sex couples.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.

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