Same-Sex Couples, Custody Rights, and Timesharing in Florida

A Florida woman who raised four children together with her same-sex partner for several years lost her bid to obtain court-ordered timesharing with the two biological children of her partner. The 2d District Court of Appeal ruled that, even though the women had raised the children together for years, and they had an informal visitation arrangement for two more years after the relationship ended, the woman had no legal relationship with the children, so the children’s biological mother had a fundamental right to cut off and deny visitation to her former partner. Even though the law has recently changed in Florida regarding same-sex marriage, a marriage between the two women alone may have not saved the woman’s case, since she still would not have been a legal parent to the children. Only adoption would have guaranteed her rights, which was a choice that became available in Florida prior to the women’s separation.

The couple, S.R. and E.P., decided to start a family after several years together. The women purchased anonymous donor sperm, and, using that sperm, each woman became pregnant twice and had two children. The women raised the four children together as one family until their relationship deteriorated and, in the spring of 2011, they separated.

For two and a half years after the breakup, S.R. allowed E.P. to see the two children born to S.R. However, in the fall of 2013, S.R. cut off this arrangement. E.P. went to court, arguing that she was a “de facto” or “psychological parent” to S.R.’s children and should be granted timesharing on that basis. In some cases in the past, Florida courts have awarded custody or visitation rights to non-parents, such as grandparents, foster parents, and step-parents, when they established a parent-child-like relationship and continuing that relationship was in the best interest of the child. S.R. asked the court to throw the case out, arguing that E.P. had no legal standing to even ask a court to award timesharing. The trial court disagreed and allowed E.P. to proceed.

On appeal, though, the appellate court sided with S.R.. Even though E.P. had laid out a viable assertion that she was a psychological parent to the children, S.R.’s privacy rights controlled the outcome. In recent cases, the Florida Supreme Court has been very clear that a child’s legal parent (either biological or adoptive) has a fundamental privacy right “to make decisions about their children’s welfare without interference by third parties.” Anyone seeking custody or timesharing rights on any basis other than biological or legal parentage is a “third party” and has inferior rights to someone who is the child’s biological or legal parent. Even allowing E.P. to pursue her case in court would interfere with S.R.’s parental rights. Therefore, E.P. lacked the required legal standing to continue her action.

The court made note of the fact that all of the events in S.R. and E.P.’s case took place before the US Supreme Court’s Obergefell v. Hodges decision, finding a fundamental right to same-sex marriage, but it explicitly refused to state how it would have ruled had S.R. and E.P. been married. The court did point out, however, that many heterosexual former step-parents have lost their timesharing cases when the child’s biological parent opposed such visitation, hinting that, even if she and S.R. had been married, E.P. may still not have succeeded.

However, while the right of same-sex marriage did not come to Florida until the summer of 2015, the right of same-sex adoption had existed since 2010, a year before E.P. and S.R. separated. The court pointed out that E.P. could have adopted S.R.’s children, which would have “arguably guaranteed her the rights of a parent that she now seeks.”

The law of custody and timesharing as it relates to same-sex couples in Florida is still evolving. For thoughtful and knowledgeable advice and solutions to your custody or timesharing issues, talk to the South Florida child custody attorneys at Sandy T. Fox, P.A. Our diligent and skillful attorneys can help give your family the information and representation you need during these challenging circumstances.

More blog posts:

Groundbreaking US Supreme Court Case Clarifies Status for Same-Sex Couples Seeking to Divorce in Florida, Fort Lauderdale Divorce Lawyer Blog, July 8, 2014
Florida Court Upholds Enforcement of Colorado Order Granting Visitation to Grandparents, Fort Lauderdale Divorce Lawyer Blog, April 7, 2014