Is Florida’s Gay Adoption Ban Still On The Books?

Most people know that, for a long time, Florida did not permit gay individuals to adopt children.

Florida’s adoption laws were and are mainly based on the best interests of the child.  Even if a prospective adoptive parent were a convicted violent felon, the felony likely would not automatically prevent an adoption from happening; the judge would need to entertain evidence and make a determination about whether, despite the felony, the adoption was in the best interests of the adoptee.

But if a prospective adoptive parent were gay, and the judge knew this fact, there would be no analysis.  A gay person was not permitted under Florida law to adopt a child, regardless of whether it was in the child’s best interest.

However, that all changed in 2010, when Florida’s Third District Court of Appeals published its decision in In re the Adoption of XXG and NRG.

In XXG, two children were put in the foster care of a gay man in 2004, and the children thrived in his care.  In 2007, the foster parent petitioned to adopt the children.  Even though the Department of Children and Families found that it would be in the best interests of the children for the adoption to be granted, the Department determined that it could not support the adoption as it was contrary to Florida’s laws, and ultimately the trial judge denied the petition.

Upon appeal, the Third District Court declared that the ban on gay people adopting children was blatantly unconstitutional, and it directed the trial judge to grant the adoption.

Soon thereafter, the Governor of Florida announced that the State would not appeal the decision to Florida’s Supreme Court, nor would it seek to enforce the ban outside of the Third District.

And so, finally, trial courts throughout the state began permitting gay individuals to adopt.

But, oddly enough, the ban remained on the books.  As of the date of this post, section 63.042(3) of the Florida Statutes still states that “No person eligible to adopt under [the Florida Adoption Act] may adopt if that person is a homosexual.”

But, fortunately, that may be changing very soon.  As the Tampa Bay Times reported, Florida’s House of Representatives passed H.B. 7013, which would delete the prohibition against gay people adopting from 63.042.  Hopefully it will pass the Senate and not be vetoed by the governor so that the state’s laws will finally reflect the humanity of its citizens.

If you have questions regarding adoption or LGBT Florida family law rights, schedule a consultation with Family Diplomacy: A Collaborative Law Firm at (813) 443-0615 or fill out our contact form.