In Unique Case, Daytona Court Says Both Lesbian Moms Have Parental Rights

The Florida Fifth District Court of Appeal recently ruled in a case of first impression involving a same sex partnership child custody dispute. In a rather unique case, two women involved in a same sex partnership decided to have a child after engaging in a committed relationship for 11 years. When one woman in the partnership learned she was infertile, the other donated an egg which was fertilized using an anonymous donor. The infertile partner then carried the child to term and a baby girl was born in January 2004. The result was that although one partner gave birth to the child, the other is the child’s biological mother.

Only the woman who gave birth to the child was listed on her birth certificate, but the child’s last name is a hyphenated version of each woman’s last name. Although the couple parted when the child was 2 years old, she continued to treat each woman as a parent and divided her time between them. When the child was 3.5 years old, the birth mother reportedly took the child and left the country without notice. A short time after the egg donor learned of their whereabouts, the two returned to Florida.

The child’s biological mother filed a lawsuit in Brevard County seeking visitation. A circuit judge reluctantly ruled in favor of the child’s birth mother because a woman who gives birth to a child is the child’s mother according to Florida law. The biological mother appealed to the Fifth District Court of Appeal. The appellate court stated both the United States and Florida constitutions provide parental rights to both women and preempt Florida law on the matter. The Fifth District overturned the Brevard County judge’s decision and remanded the case to determine visitation, custody, and child support issues based on the best interests of the child.

The appellate court also asked the Florida Supreme Court to consider whether application of the Florida statute regarding parentage to the facts of the case at hand rendered the statute itself unconstitutional.

In the state of Florida, a custody arrangement is generally referred to as a time-sharing schedule. An overall parenting plan which includes a time-sharing schedule is usually established when parents divorce but can be established any time parenting partners choose to end their relationship. A time sharing plan outlines the amount of time a child will spend with each parent every week. This includes both holidays and overnights. If a child’s parents cannot agree on a time-sharing plan, a court will set a schedule which takes into account a variety of statutory factors and the child’s preference. Florida law requires a parent who seeks to modify a time-sharing schedule to show the existence of substantially changed circumstances which justify the change.

Few topics are more upsetting to parents than determining custody matters for your children. If you are involved in a custody dispute or seek to modify your child custody arrangement, our knowledgeable family law attorneys can help. Attorney Sandy T. Fox focuses exclusively on family law matters and will explain the child custody process to you. He can help you negotiate a time-sharing plan for your children.

Call Sandy T. Fox, a Fort Lauderdale divorce attorney, today at (800) 596-0579. You may also contact him through his website to schedule a confidential consultation.

More Blog Posts:

Baby-Boom Generation Increasingly Choosing Late Life Divorce, Fort Lauderdale Divorce Lawyer Blog, December 27, 2011
Florida Legislators Consider End to Permanent Alimony, Fort Lauderdale Divorce Lawyer Blog, December 20, 2011
Additional Resources:

Both lesbian moms have parental rights, Daytona court rules in custody dispute, by Rene Stutzman, Orlando Sentinel

Web Resources:

T.M.H. v. D.M.T., No. 5D09-3559, (Fla. 5th DCA, December 23, 2011)

ยง 742.14, Fla. Stat. (2011)