Gay Adoption in Florida

lgbt_img2The History of Gay Adoption in Florida

The good news: Gay Adoption in Florida is alive and well. It wasn’t always this way. During the 70’s Anita Bryant an anti-gay activist lobbied and succeeded in getting legislation passed that strictly outlawed adoption by “homosexuals”. But all that changed in 2010 when a Federal court ruled that the law banning adoption by gays and lesbians was unconstitutional. However, before 2015 when gay marriage was not recognized in the State of Florida, the only way that both partners in gay and lesbian couples could obtain parentage rights to the child was by means of “second parent” adoption rather than the more streamlined all in one adoption procedure which recognized both spouses of a married heterosexual couple as adoptive parents in one proceeding. Before gay marriage was recognized in the State of Florida, gay couples wishing to ensure the parentage rights of both partners was in place, had to go through a legal process in which one parent adopted the child and then the second partner had to adopt through a process known as “second parent adoption”. This process required more paperwork, including a home study by a licensed adoption agency or social worker, and thereby was more costly.

Florida Gay Adoption Today

After the recognition of gay marriage in the State of Florida in June of 2015, gay and lesbian couples have the preferable and less costly process of “step parent adoption” available to them. This is an important leap forward for gay and lesbian couples who are raising children together. In the case of divorce, death or incapacitation, the other spouse will retain parentage rights. The significance of this may not always seem immediately apparent. Some examples of why this is an important legal protection are as follows:

1. A lesbian married couple have been raising a child together since birth who was conceived by using the eggs of one of the spouse’s. Should this couple divorce, the spouse who is not biologically related may lose custody and all parentage rights in a divorce. In the emotional tumult and turmoil that can happen in divorces, the consequences of one spouse losing parentage and custody and visitation rights can have a devastating impact on both the losing spouse and the children who are caught in the middle of the battle.
2. A lesbian married couple in which the biologically related parent dies or becomes incapacitated and unable to parent. Without a court order of adoption, the rights of the non-biological parent could be at jeopardy. Family members of the biological parent could assert rights that a court could possibly uphold.
3. A gay couple who used the sperm of one partner and a surrogate who divorce or the biologically related parent dies or becomes incapacitated as in the examples above. The non-biological partner could lose all rights to the child he raised.

Gay Adoption: Why Marriage Isn’t Always Enough

With the legal recognition of marriage, many gay and lesbian couples are under the false assumption that marriage protects their parental rights. After all, isn’t that the way it is for their straight married family and friends? The unfortunate answer is “not necessarily”.  Parentage rights do not always flow from marriage. The laws of parentage are expressed by each individual state and these laws are completely separate from the issue of marriage. In fact, some states are working on legislation designed to undermine the Supreme Court’s ruling on marriage. Michigan recently passed a law allowing state-funded adoption/foster care agencies to deny services to certain people wishing to adopt or become foster parents based on religious grounds – these organizations target gay people. Other states have similar laws allowing discrimination based on religious grounds and other states are proposing them. So, a gay couple living in one state where they are protected legally could move to or even just travel to another states where the legal framework is not supportive of gay issues and these couples and their children can find themselves in legal quagmires.

Gay Adoption: The Birth Certificate Quandary

Many gay couples wrongly assume that names appearing on a birth certificate is proof of parentage. This is not always the case. Legal parentage is usually determined in the framework of each state’s law on parentage. While one’s name may be evidence of parentage, it is not a final determining factor.
Florida, like Texas, is also behind the curve of the times. Florida Currently, Florida is not allowing a biological mother to put her wife’s name on the child’s birth certificate. That means the biological mother’s wife has no parental rights when their child is born even when she is married to the biological mother. Note: this is different than opposite-sex married couples. A man married to a woman is presumed to be the biological father when the woman gives birth. This issue is currently being litigated in Florida

In some states, such as Texas, the birth certificates only allow for a “mother” and a “father” to be listed on the birth certificate. Therefore, only one parent is listed on the birth certificate. Some state officials will drag their feet and more than likely it will take litigation to force the hand of bureaucrats not eager to make the changes.

Gay Adoption: The Protection of the Court Order

Under the U.S. Constitution’s Full Faith and Credit Clause, states must give recognition to other state’s judgments. This is why attorneys who are knowledgeable in gay family law issues recommend that LGBT couples who have children obtain court orders of adoption. It is the strongest protection available. Once there is an adoption decree in place, if the couple travels or moves to a non gay-friendly state in which recognition of the non-biological parent’s rights are not likely to be recognized, the court decree obtained in another state will be upheld. This can become immensely important in divorce situations or if the biological parent becomes incapacitated or dies. The rights of the non biological parent to retain custody in a divorce or to make medial decisions on behalf of the child if the biological parent becomes incapacitated or dies are protected.