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The Challenges Still Faced by LGBT Couples with Children in Florida (Even if You’re Married,) and What You Can Do to Protect Your Family

This past January was an important anniversary to many gay and lesbian couples in Florida. Five years ago on January 6, same-sex couples were, for the first time, legally able to marry in the Sunshine State. With that event, and with the U.S. Supreme Court’s marriage equality ruling the following June, it might be easy to assume that it’s now all smooth sailing for LGBT families in Florida. However, that isn’t always the case, especially if there are children involved. If you are a gay or lesbian couple who has minor children, there may still be potential pitfalls, which is why it is still very wise to consult an experienced Fort Lauderdale family law attorney about your situation.

Last year, a gay couple lost their case seeking to have both of them recognized as their children’s fathers. They had added two children to their family through the use of an egg donor and a surrogate mother in Canada, and their high court told them that only the children’s biological father could be recognized as a legal parent. The other partner would “have to apply for special permission to become their adoptive father,” according to a report from thelocal.it.

That case happened in Italy, not in Florida. However, recent rulings from Florida courts also raise the possibility of problems for gay and lesbian couples with children. Back in 2018, the Florida Supreme Court issued a ruling that, while not involving gay or lesbian parents, could have a profound impact on LGBT families.

In that case, a wife, T.S., gave birth to a child while married to S.F. The child, however, was not S.F.’s. C.P., who was unaware T.S. was married and had been in a multi-year relationship with T.S., was the biological father. After the baby’s birth, the biological father had visits with the child and paid support.

Eventually, he went to court to obtain legal recognition of his paternity. The mother tried to get his paternity action dismissed, asserted the well-known proposition that, when a child is born to a mother in an intact marriage, Florida law presumes that the child’s father is the mother’s husband. The Fourth District Court of Appeal and the Florida Supreme Court sided with the biological father. The appeals court stated that the presumption of a husband’s paternity could be defeated “if common sense and reason are outraged” by enforcing the presumption. The Supreme Court went on to add that biological parents can succeed, even in cases involving intact marriages, if there is a “clear and compelling reason based primarily on the child’s best interests” on their side.

How that Florida Supreme Court ruling could impact your family

So, what does this mean for you as a gay or lesbian married couple? Although it may not necessarily be a high likelihood, it raises the possibility that, if your child is the biological offspring of your spouse and a donor (egg or sperm), a Florida court might potentially grant the donor’s petition to be named as a legal parent, even though the child was born into your spouse’s intact marriage to you.

There are ways to safeguard against this. There are legal tools such as a procedure to terminate the parental rights of the donor. Also, if you are the spouse who is not biologically related to the child. A legal adoption may further cement your rights as the child’s father or mother.

Each case is different, though, so what is not needed in some circumstances may still be very beneficial in others. To be sure that you have everything you need to feel safe in terms of the protection of your relationship with your child, contact the skilled South Florida family law attorneys at Sandy T. Fox, P.A., who have many years of helping Florida families of all shapes, sizes and types to achieve their goals. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

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