Florida Same-Sex Couple Has Custody Battle: How Will It Impact Florida Same-Sex Laws?

992546_bonding.jpgFlorida same sex marriage, adoption, parental rights, and custody questions have been plaguing the courts for a number of years. As a Jacksonville family law attorney, I have been curious about how such things will play out in the legal realm and whether the Florida lawmakers will finally give us something to use as guidelines. Finally, after the Florida Supreme Court did not hear the last adoption case, another same sex question is sitting on the courthouse steps according to a Florida Times Union article . Can a same sex couple have equal rights to a child?

The latest case to be ripe for the Florida Supreme Court on same sex couple issues is presently awaiting the word as to whether it will be on the Court’s calendar in the near future. Many Florida same sex couples have been patiently waiting for the Florida Supreme Court to tackle a number of issues, including parental rights of a same sex couple. The one ripe for a decision is a case involving two women who were in a relationship until 2006. In 2004, the couple had a child after they decided that one woman would provide her egg for in vitro fertilization and the other would carry the child to term. Thus, creating a proposed shared parental responsibility for the child born to them.

The couple subsequently separated in 2006 and the birth mother moved to Australia with the child without the knowledge and consent of the biological mother. After years of searching, the birth mother and child were located and the biological mother sued for parental right and custody of the child.

The trial court heard the case and the Judge ultimately ruled in favor of the birth mother over the biological mother. The trial judge ruled in favor of the birth mother, but stated that he hoped his decision was overturned. Ultimately, still solidifying the fact that law is not always how we would like it to be when making such decisions. Also, identifying that the law is not clear as to what outcome is correct for the proposed parents and child in this case.

The biological mother appropriately appealed the trial judge’s decision. The appeals court issued an opinion, which was a 2 to 1 decision in favor of the biological mother. The decision was based on the court’s finding that the biological mother was not a donor, as provided for having terminated parental rights upon the donation of the egg via Florida law regarding such issues. The appellate court decided that she was not, in fact, a donor because the two women decided to have the child together and it was not contemplated by either party, at the time, that the egg was being donated for the other to be the child’s sole parent.

For now, the appellate court’s ruling will stand, but will also be on hold until the Florida Supreme Court decides whether or not to hear it. Such legal questions will continue to exist until such time the Florida legislature begins to establish statutory guidelines for such issues. The law is grey when it comes to these matters and it can be interpreted based on contractual rights, but the law still needs to be on the side of the best interest of the children in all such cases.