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Many LGBT+ Parents Used to Take Extra Steps Before Marriage Equality to Protect Their Parental Rights in Florida. Do They Still Need To? (Hint: Potentially Yes.)

When it comes to planning, nothing is more important than doing the planning necessary to protect your family. By retaining the services of a skilled South Florida family law attorney, you can be sure you have the right “safety net” to protect your most priceless treasure: your relationship with your children.

No one wants to think about planning for a potential breakup of their new marriage or newly expanded family, but that’s when you should begin planning to give yourself the “safety net” your family needs. If you’re a gay or lesbian parent whose children are the biological offspring of your spouse/partner but have no biological link to you, it is especially important that you do the proper planning to protect your relationship with your children.

It may be easy to think that, when the U.S. Supreme Court made its marriage equality ruling in the Obergefell v. Hodges case five years ago, all of the unique risks that LGBT+ parents face went away, but that’s simply not true, and a recent case from the Orlando area just further highlighted that fact.

S.M. and J.C. were a lesbian couple in a committed relationship when they had two children, one in 2012 and one the next year. A few months after the second child’s birth, the women wed in New Hampshire. The couple welcomed two more children, one in 2014 and one in 2015. In each child’s case, J.C. was both the genetic mother and the birth mother. The four children bore S.M.’s last name but had no biological relationship to her.

During the divorce case, J.C. argued in court that S.M. had no parental rights to any of the children because she was not a biological parent of any of the children and had not legally adopted them.

The trial court partially agreed with S.M. and allowed her to continue forward with regard to the two younger children. The trial judge said that Florida law presumes the younger two to be the legal children of S.M. and J.C. because the children were born into the intact marriage of S.M. and J.C. (Historically, that law was used to assign paternity to the husband of a child’s mother in the absence of proof to the contrary, but recent court decisions have said that this law also applies to parents in same-sex marriages.)

The judge, however, agreed with J.C. about the older two children and dismissed S.M.’s claims regarding them. The appeals court reversed that decision, concluding that S.M. was entitled to a court hearing to try to prove that she met the standards of a “reputed” parent under Section 742.091 of the Florida Statutes. That law says that, if a “reputed father” of a child born out of wedlock later marries that child’s mother, then that may make the child the “reputed” father’s legal offspring. The wording of Section 742.091 is written in the context of a male-female set of parents but, much like the law regarding the presumption of paternity for children born of an intact marriage, it can also apply to same-sex couples.

Adoption can still be a vital means of protecting a LGBT+ parent’s rights

This outcome meant that S.M. got a renewed chance to have a hearing and argue that she should be awarded parental rights regarding the two older children. Perhaps S.M. will win after her new hearing… but perhaps she won’t. A loss means that she’ll be declared a “legal stranger” to two of her four kids. Even if she wins, she’ll have had to go through a prolonged court process just to get her parental rights affirmed.

There is usually a better way: adoption. Adoption was clearly necessary in Florida for some same-sex parents before the days of marriage equality when their children were the biological offspring of one but not the other. However, even with marriage equality in place today, cases like S.M.’s show that adoption may still hold a high degree of value in terms of protecting your relationship with children that are very definitely “yours,” even if there’s no biological tie.

Never leave your relationship with your children to chance in the event of a same-sex divorce. Always do advanced planning to protect your relationship with them when you can and, if that relationship is threatened through subsequent litigation, make sure you have powerful legal representation on your side. Call upon the determined South Florida family law attorneys at Sandy T. Fox, P.A., for knowledgeable advice and diligent advocacy you need. Contact us online or call (800) 596-0579 to schedule your confidential consultation.

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