A Solomon Like

Decision:
Factors in Determining Child
Custody for Same Sex Couples in
Florida after Dissolution of a
Relationship or Marriage

History of Same-Sex
Marriage
O 1996 DOMA was passed by President Bill

Clinton and gave states permission to refuse to

recognize same-sex marriage
O In 2008, Florida voters approved the
amendment that banned same-sex marriages
and civil unions and also defined marriage.
O Fla. Stat. Ann. 741.212:
O For purposes of interpreting any state statute or

rule, the term marriage means only a legal

union between one man and one woman as
husband and wife, and the term spouse applies
only to a member of such a union.

37 states recognize same-sex marriage

On January 6th, 2015 the freedom to marry

took effect statewide in Florida as an appeal proceeds
to the 11th Circuit Court of Appeals in a federal
marriage ruling, issued in August 2014 from U.S.
District Court Judge Robert Hinkle.

Same-Sex Couples on the

Rise
O According toThe Williams Institute's
analysis of the 2010 U.S. Census:
O 48,496 same-sex couples are living in

Florida

Chart taken from the Florida Partnership Law Blog/ data from 2012 U.S.
Census Bureau

Significance
O Now that same sex marriage is

recognized, it is time to understand that

just like heterosexual couples,
homosexual relationships/marriages will
dissolve.
O Also, we cannot assume that all

homosexual couples will legalize their

relationship through marriage.
O Homosexual couples who chose to have a

child and unfortunately split, have no

guidance through Florida law on child
custody and visitation rights.

Significance Contd
O Reality: One parent will be a

biological parent and one will be

nonbiological parent

Objectives
O Does Floridas recognition of homosexual

marriages address issues of marriage when

custody is contested?
O Can legal parentage be based upon
homosexual couples intent to raise a child?
O Can Floridas Child Custody Statues be
applied to homosexual couples?
O Does Florida law have a presumption of
parentage statute?
O How are other states applying child custody
to homosexual couples?

Child Conception In Same Sex

Couples
O Surrogacy
O Artificial Insemination
O In Vitro Fertilization

Surrogacy
O Gay men use surrogacy in which

another women gives birth to a baby

that the couple could not have on their
own
O Lesbian couple choses one of the
women to carry the baby and act as a
surrogate
O A homosexual couple can chose to
inseminate with one of or both of the
mens sperm to then be considered legal

Surrogacy
O Traditional: the women who carries the

baby to term is also the genetic mother

O Gestational: uses an implanted embryo

from the couple; therefore, the surrogate

is not the biological parent of the child

Gestational Surrogacy
Statute
O

Florida Statute 742.16:

O (6)The

commissioning couple or their legal representative shall appear at the

hearing on the petition. At the conclusion of the hearing, after the court has
determined that a binding and enforceable gestational surrogacy contract has been
executed pursuant to s. 742.15 and that at least one member of the commissioning
couple is the genetic parent of the child, the court shall enter an order stating
that the commissioning couple are the legal parents of the child.
O (7)When at least one member of the commissioning couple is the genetic parent
of the child, the commissioning couple shall be presumed to be the natural
parents of the child.
O (8)Within 30 days after entry of the order, the clerk of the court shall prepare a
certified statement of the order for the state registrar of vital statistics on a form
provided by the registrar. The court shall thereupon enter an order requiring the
Department of Health to issue a new birth certificate naming the commissioning
couple as parents and requiring the department to seal the original birth certificate.
O (9)All papers and records pertaining to the affirmation of parental status, including
the original birth certificate, are confidential and exempt from the provisions of s.
119.07(1) and subject to inspection only upon order of the court. The court files,
records, and papers shall be indexed only in the name of the petitioner, and the
name of the child shall not be noted on any docket, index, or other record outside
the court file.

In Vitro Fertilization
O The process of fertilization by manually combining an egg and a

sperm in a laboratory dish, and then transferring the embryo to

the uterus.
O Florida Statute 742.14:
O (1)Except in the case of gestational surrogacy, any child born
within wedlock who has been conceived by the means of
artificial or in vitro insemination is irrefutably presumed to be the
child of the husband and wife, provided that both husband and
wife have consented in writing to the artificial or in vitro
insemination.
O (2)Except in the case of gestational surrogacy, any child born
within wedlock who has been conceived by means of donated
eggs or pre-embryos shall be irrefutably presumed to be the child
of the recipient gestating woman and her husband, provided that
both parties have consented in writing to the use of donated eggs
or pre-embryos.

Custody Issues with In Vitro

Fertilization
O

T.M.H. v. D.M.T.
O The two women had a child together using funds from a joint

O
O

O
O

bank account and paid a reproductive doctor to withdraw ova

from T.M.H. and implant the fertilized ova into D.M.T.
Raised the children together in the same house
After dissolution of their relationship, D.M.T. is requesting
sole parental guardianship on the grounds that she is the
biological parent
Trail court ruled in favor the D.M.T.
5th DCA appealed found The found that F.S. 742.14 (wavers
rights as donor) was unconstitutional in this case the T.M.H.
has protected parental rights. To deny T.M.H.s maternal
rights would be unconstitutional and would violate equal
protection.

O It is not the biological relationship, it is the assumption of

parental responsibilities which is of constitutional

significance.

Adoption
O 63.042Who may be adopted; who may adopt.
O (1)Any person, a minor or an adult, may be adopted.
O (2)The following persons may adopt:
O (a)A husband and wife jointly;
O (b)An unmarried adult; or
O (c)A married person without the other spouse joining as a petitioner, if the

person to be adopted is not his or her spouse, and if:

O 1.The other spouse is a parent of the person to be adopted and consents to

the adoption; or
O 2.The failure of the other spouse to join in the petition or to consent to the
adoption is excused by the court for good cause shown or in the best interest
of the child.

O (3)No person eligible to adopt under this statute may

adopt if that person is a homosexual.

O (4)No person eligible under this section shall be prohibited from adopting

solely because such person possesses a physical disability or handicap, unless

it is determined by the court or adoption entity that such disability or handicap
renders such person incapable of serving as an effective parent.

Adoption
O September of 2010, court declared

that the statute restricting

homosexual adoption was
unconstitutional.
O Case of Florida Department of

Children and Families v. X.X.G.

and N.R.G
O Homosexual foster parent was not

allowed to adopt
O Violates his rights to equal protection,
privacy, and due process

Second Parent Adoption

O Legal procedure that allows a same-sex

parent, regardless if they have a legally

recognized relationship to the other parent,
to adopt her or his partners biological or
adoptive child.
O Without second-parent adoption, the
nonbiological parent has no legal rights to
the child.
O Those couples who do not legally get their
marriage recognized in Florida should secure
their parental rights through this option.

Stepparent Adoption
O The process where the married

stepparent adopts his or her

spouses child
O Stepparent adoption requires that
the person prove they are an
effective parent and that the two
parents are legally married
O After adoption, the stepparent has
all the same rights and
responsibilities as the biological
parent

De Facto Parenthood
O Defined by someone who has been

found to assume the day-to-day

basic duties of a parent by fulfilling
the physical and psychological needs
for a period of time
O In cases in which same sex couple is
not able to or does not adopt, this
alternative approach can been taken
O Also known as, psychological parent

Non Biological Parent Fate

O The courts favor the biological parent therefore making it so

important to become the biological or adoptive parent

O Wakeman v. Dixon, 921 So. 2d 669
O

O
O
O

Joint decision in a co-parenting plan for Dixon to be the biological

parent and for Wakeman to serve as the co-parent or de facto parent
who has participated in all pre-natal care and provide for the child
Dixon named Wakeman as the guardian of the child and signed a
medical and dental consent form for Wakeman to make decisions on
behalf of the childs health
The couple split and Dixon relocated with the children
Wakeman filed a complaint for breach of contract, breach of fiduciary
duty, residency, and child support.
Trial court found that Wakeman had no enforceable legal rights
regarding the children and that without evidence that Dixon is
harmful, it would be interfering with the natural parents privacy right.

Kazimerazak v. Query
O Appellant argues that she is entitled to an evidentiary hearing to

establish that she is a "psychological parent" of appellee's

biological child. As a psychological parent, she contends that she
has parental status equal to the appellee, the biological mother,
which gives her standing to seek custody or visitation of
appellee's child over appellee's objection.
O Thus, the issue in this case is whether, under current Florida law,
a psychological parent has the same rights as a biological parent.
O Von Eif v. Azicri , 720 So.2d stands for the proposition that the
state cannot intervene into a parent's fundamental or
constitutionally protected right of privacy, either via the judicial
system or legislation, absent a showing of demonstrable harm to
the child.
O Rejected the argument that a psychological parent has standing
to pursue custody or visitation of another person's adoptive or
biological child.

Dissolution of Marriage of
Heterosexual Couples
O No-fault divorce state
O Must prove that your marriage is irretrievably

broken and that one party to the marriage must

be a Florida resident for the sixth month period
immediately proceeding the petition for divorce
O Shared Parental Responsibility
O Sole Parental Responsibility
O Rotating Custody
O Primary Residential Responsibility
O Secondary Residential Responsibility
O Reasonable Visitation
O Specified Visitation
O Supervised Visitation
O No contact

Best Interest of the

Child
O A Florida family court will establish child custody or time-

sharing using the standard best interest of the child

O The court will consider the following factors:
O

O
O
O
O
O
O
O

Each parent's willingness to encourage and support a relationship

between the child and the other parent, to honor a time-sharing
schedule, and to be reasonable when changes occur
Each parent's ability to respond to the child's needs as opposed his/her
own needs
The mental, physical, and emotional health of the parents
The stability of the child's home environment
Any history of domestic violence, sexual violence, child abuse, or child
neglect
The child's wishes, if the court deems the child to be of a sufficient age,
intelligence, understanding and experience (generally age 12 or older)
Each parent's ability to be involved with the child's school and
extracurricular activities
Demonstrated capacity of each parents to be informed of minor childs
circumstances, including, but not limited to, friends, routine, teachers,
medical care providers, favorite things, daily activities.

Uniform Child Custody

Jurisdiction and Enforcement Act
1) establish jurisdiction over a child custody
case in one state; and,
O 2) protect the order of that state from
modification in any other state, so long as the
original state retains jurisdiction over the case.
O It was also enacted in forty-nine states, to
prevent parents from child abduction across
state lines. Previously, it had been a common
practice for noncustodial parents to take the
children and find a sympathetic court in a
different state willing to reverse unfavorable
custody order.
O

Other States Divorce/Child

Custody Proceedings
O

Same-sex couples desiring to divorce in

the state of Maryland are treated the same
as everyone else under the states divorce
laws. The couple must meet Maryland
residency requirements, and if the grounds
for the divorce occurred in Maryland, one
spouse must currently reside in the state.
O Same for Vermont, California, etc.

O No child custody laws created specifically

for homosexual couples

Child Custody of Non-Married

Couples
O Equal Child Custody Rights
O Both biological parents have equal rights the

the child
O Father must establish paternity to gain
access to rightsno presumption of paternity
when not married
O Determine parenting agreement
O Petition the court for child

custody/visitation
O Court still seeks to determine best interest
of the child

Children Born Within the

Marriage
O Children born during the parties' marriage are

presumed to be the children of the parties unless

that presumption is rebutted by proof that
someone else is the parent.
O If it can be agreed by or proven that the parent is
not biological of a child born during the marriage,
then there needs to be an action for termination of
parental rights. A termination means that they will
not be the legal father of the child and he will have
no rights or responsibilities regarding the child.
O This presumption should be applied in
homosexual couples

Objectives Review
O Does Floridas recognition of homosexual

marriages address issues of marriage when

custody is contested?
O How are other states applying child custody
to homosexual couples?
O Can legal parentage be based upon
homosexual couples intent to raise a child?
O Can Floridas Child Custody Statues be
applied to homosexual couples?
O Does Florida law have a presumption of
parentage statute?

Proposed Solutions
O Broaden our definition of a parent
O Modify and update Florida Statutes

according to the Florida law that

includes the legal marriage and
adoption for homosexual couples
O Recommend that in Florida Statutes
they use parent(s) or parentage instead
of mother, father, maternal, paternal
gender neutral language
O Clearly state options for parentage for
non-biological and non-legal parents

Proposed Solutions
Adopt a law that states that if a child is born
with the marriage that child is conclusively
presumed to be a child of that marriage
O Do not overemphasize biological parentage
when it comes to parental rights when
children are born outside of wedlock
O Clearly state recognition of second-parent
adoption for homosexual couples who do not
chose to marry
O Use best interest of the child standard in
every child custody proceeding
O

THANK YOU!

Dr. Cook Dr. Fromang Professor Weaver