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Florida Same Sex Relationships: Do I Need To Adopt My Child?

In general, when a baby is born in an intact marriage, that baby is considered the legal child of both spouses.  Similarly, when a married person adopts a child, that child is oftentimes considered the legal child of that married person and his or her spouse.

But what is the status of a child in Florida born of or adopted into a same sex marriage?  In other words, if two men or two women are married in another state, move to Florida, and have a baby, is that baby considered the legal child of both spouses?

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Federal Government to Recognize Same Sex Marriages Performed in Utah

For 17 days, same sex marriages were legally performed in Utah.  On December 20, 2013, a federal district court struck down Utah’s Defense of Marriage Act (“DOMA”) which, similarly to Florida’s DOMA, recognizes marriage as only between one man and one woman.  Over 1300 Utah gay and lesbian couples took advantage of their newly recognized right to marry when, on January 6, 2014, the U.S. Supreme Court stepped in to pause marriage equality in Utah pending appeal.

Related:  Five Legal Steps Florida LGBT Parents Should Take

Despite the legal seesaw regarding the status of same sex marriage in Utah, the Washington Post cites U.S. Attorney General Eric Holder as stating that those couples who were married during that 17 day period would be recognized by the federal government and receive federal marriage benefits.

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Private Child Custody Proceedings: Florida Collaborative Practice

When people are seeking to gain child custody rights in Florida – whether through divorce, paternity, establishment of parenting plan, grandparent custody, or other proceedings – the first step they usually take is file a petition with the Clerk of the Court.

Generally speaking, this is a mistake.

By filing a petition, they are entering into the public court system which pits mother against father.  This is an adversarial system which oftentimes leads parties to engage in emotionally and financially draining court battles, and all dirty laundry gets examined and aired.

But there is another way, a private way of determining parental responsibility and child time-sharing schedules.  It is called collaborative practice, also known as collaborative family law.

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Florida Same Sex Married Couples To Be Eligible For Federal Tax Benefits

Back in June, shortly after the groundbreaking ruling in U.S. v. Windsor, I wrote a post in which I asked whether Florida same sex partners would get federal benefits.  Though the ruling struck down parts of the federal Defense of Marriage Act (“DOMA”), it did not touch on state DOMAs.  Further, part of the rationale for the Windsor ruling was that marriage laws should be consistent within states so that if a state recognized gay marriage for the purpose of state benefits, then the federal government should recognize gay marriage in that state for the purpose of federal benefits.

But would the federal government recognize the marriage of those same sex couples who legally got married in one state, but then moved to a state, such as Florida, that did not recognize same sex marriage?

The answer, at least for one benefit, appears to be yes.

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Can Florida Same Sex Partners Now Get Federal Marriage Benefits?

In yesterday’s U.S. Supreme Court Opinion striking down portions of the federal Defense of Marriage Act (“DOMA”), Justice Anthony Kennedy outlined some of the federal marriage benefits that DOMA affected:

By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.  It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive…It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations…It forces them to follow a complicated procedure to file their state and federal taxes jointly…It prohibits them from being buried together in veteran’s cemeteries.

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DOMA also brings financial harm to children of same-sex couples.  It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses…And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of a family security.

U.S. v. Windsor, 570 U.S. ___ (2013). 

So, now that portions of DOMA have been overturned, are Florida same sex couples eligible for federal marriage benefits?

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Florida’s Defense of Marriage Act

The U.S. Supreme Court is hearing arguments on the rights of lesbian and gay individuals to marry partners of the same sex, and Florida’s laws may be affected.  Currently, same sex partners are not only prohibited from entering into marriage in Florida,  but Florida law also prohibits the recognition of same sex marriages that were validly sanctioned in any other state or nation.

Related:  Five Legal Steps Florida LGBT Parents Should Take

Florida has a version of the Defense of Marriage Act (section 741.212, Florida Statutes), which reads as follows:

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Tampa’s Domestic Partnership Registry Goes Into Effect

On June 25, 2012, the City of Tampa opened up its Domestic Partnership Registry for applications.  This allows for committed same sex and unmarried heterosexual couples to have expanded rights, such as the following:

  • Healthcare visitation for partners and dependents of partners;
  • Healthcare decision-making for incapacitated partners;
  • Funeral and burial decisions for partners;
  • Notification of partners as family members in cases of emergency;
  • Pre-need guardian designation will not be denied based solely on being homosexual; and
  • Participation in education decisions for the partner’s dependent children.

Related:  Five Legal Steps Florida LGBT Parents Should Take

[Related:  In A Florida Child Custody Case, Does It Matter That I Am Gay?]

[Related:  In Which County Should I File My Florida Adoption Case?]

To sign up for the registry, couples must go to the Office of the City Clerk, located at 315 East Kennedy Boulevard, Third Floor, Tampa, Florida 33602.  Registration is open from 9:00 a.m. until 4:00 p.m., though beginning July 9 registration hours will be from 10:00 a.m. to 3:00 p.m.

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St. Petersburg and Clearwater Join Tampa and Gulfport in Creation of Domestic Partnership Registry

Tampa’s City Council recently approved the creation of a domestic partnership registry, which will be open to the public beginning June 25, 2012.  The cities of Saint Petersburg, Clearwater, and Gulfport have followed Tampa’s lead, and will all soon have domestic partnership registries.  The Tampa Bay Times writes:

[St. Petersburg’s] law…requires health care facilities to allow any registered domestic partner to visit their mate and make care decisions if their partner is incapacitated.

Since January, all hospitals receiving federal aid were required to allow domestic partners access to patients and the control of their care. A city registry would help local hospitals follow federal guidelines, said Jeannine Williams, an assistant city attorney.

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Rights Recognized in Tampa’s Domestic Partnership Registry

As President Obama today expressed his support for gay marriage, the State of Florida continues to define marriage as “a legal union between one man and one woman,” leaving homosexuals in loving relationships in a state of legal limbo.  Attempting to fill in the gap, many local county and municipal governments are passing “domestic partnership registries” which codify certain rights to heterosexual and homosexual partners.  Tampa, for one, has passed an ordinance creating a domestic partnership registry.

Related:  Five Legal Steps Florida LGBT Parents Should Take

[Related:  In A Florida Child Custody Case, Does It Matter That I Am Gay?]

[Related:  In Which County Should I File My Florida Adoption Case?]

Tampa’s domestic partnership law recognizes the following rights for registered partners (to the extent that these rights are not superseded by other laws or ordinances or by contract):

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A Story of Second Parent Adoption

An article from The Guardian tells the tale of two lesbian partners who went through a second parent adoption:

Related:  Five Legal Steps Florida LGBT Parents Should Take

When Patricia Moreno was pregnant with her first child, she went through the usual existential doubts about how life as a new mother would be. Moreno, a life coach and fitness trainer from New York, had been trying to get pregnant for well over a year. She had been through multiple rounds of IVF and suffered a miscarriage. When she did get pregnant, in December 2009, she and her partner, Kellen Mori, were over the moon, and then they started thinking.

The couple’s marriage was not valid outside the US or in many of the more conservative states; the baby, conceived by IVF using Mori’s eggs and donor sperm, would not be recognised federally as belonging to both of them. (Moreno, giving birth, would be recognised as the biological mother. Mori, who had provided the eggs, would have no automatic universal rights.) “I’m not the mum, but I am the mum,” thought Moreno and wondered idly who the baby would identify with more. As well as a good obstetrician, she and her wife of three years would be needing a lawyer.

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