Tag Archive for: adoption

Anti-Gay Language Stripped From Florida Adoption Laws

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Up until recently, chapter 63 of the Florida Statutes, which contains the state’s adoption laws, was explicitly anti-gay.  Chapter 63 and adoption case law stated that whether prospective parents could adopt a child should be based on the best interests of the child, with one exception.

LGBT flag

That exception was laid out in Florida Statutes section 63.042(3) (2014), which provided that “No person eligible to adopt under this statute may adopt if that person is a homosexual.”

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Client Review: Adult Adoption in Florida

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Floridians know about child adoption, but many do not realize that adults may be adopted as well.  Whether you have an adult step child, adult foster child, adult relative, or other person, Florida courts generally will grant adult adoptions so long the adoptee is younger than the prospective adoptive parent.  Florida courts have even granted adult adoptions that were explicitly for tax planning and estate planning purposes.

A former client of mine whom I recently helped in an adult adoption wrote a review of her experience on Avvo.com.  FLORIDA BAR DISCLAIMER: Please note that every case is different, and you may not receive the same or similar results.

You can see the review after the jump:

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

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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.

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Florida Adult Adoption and ObamaCare

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There is now a new reason for adult foster children to consider formalizing their relationship via a Florida adoption: health insurance coverage for young adults under the Affordable Care Act, commonly referred to as ObamaCare.

Though the law has been highly controversial and plagued with technological and political missteps, one portion of the law that has received near-universal praise is the ability for parents to cover their children up to the age of 26.  Unfortunately, adult foster children may not be eligible for this benefit.  But there is a solution.

Section 63.042(1) of the Florida Statutes permits any person, a minor or an adult, to be adopted.  Florida law also has an expedited process so that an adult adoption can be accomplished much more quickly than most adoptions of children.

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

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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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Florida Gay Adoption: The Man And The Ban

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I recently wrote a guess blog for South Florida Estate and Business Planning Attorney Barry Haimo on the end of Florida’s categoral ban on adoptions by homosexual individuals.  Below is a reproduction of the article:

In 1977, the Florida Legislature passed a law stating that “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” That law still is still on the books as section 63.042(3) of the Florida Statutes.

However, like other laws that are still on the books, section 63.042(3) is no longer enforced because it has been struck down as unconstitutional. Below is a summary of the case, In re the Adoption of XXG and NRG, 45 So. 3d 79 (Fla. 3d DCA 2010), which overturned the United States’ last categorical ban on gay adoption:

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Florida Adult Adoption and Inheritance

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When clients come to me and ask about the effects of Florida adult adoption, one subject that often comes up is how an adult adoptee will be treated for purposes of inheritance and the laws of intestacy.  Florida estate planning attorney Barry Haimo discusses this subject in a recent blog article:

Florida law provides for adopted children to be included in the definition of descendant for purposes of the laws of intestacy. Most documents provide similar language to ensure that adopted children are treated as children for inheritance purposes…

The issue presented here is that neither the law nor documents generally provide a limitation on adoption for purposes of class gifts. Should there be age limitations? Timing limitations (such as when the order is entered)? In this regard, we’re really focusing on adult adoption…

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Baby Veronica Adoption Case Decided By U.S. Supreme Court

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I have previously written about the adoption case of Baby Veronica.  In this case, a South Carolina court ordered a child to be taken from her prospective adoptive parents’ home and to be placed in her biological father’s home even though the father had abandoned the child and consented to the adoption.  The court’s logic was that, because the child’s father was a member of the Cherokee tribe – and so Baby Veronica was a member of the Cherokee tribe – the Indian Child Welfare Act (“ICWA”) applied.  Accordingly, the South Carolina trial court concluded, the prospective adoptive parents failed to prove that the adoption (i) was both in the child’s best interests and (ii) did not infringe on the rights of the Indian tribe.  The South Carolina Supreme Court affirmed the trial court’s decision.

I wrote in July 2012 that the South Carolina Supreme Court should not have applied the ICWA because the father had abandoned the child, voluntarily waived his parental rights, and consented to the adoption.  I also wrote that the case likely would have been decided differently by Florida courts.

Well, the prospective adoptive parents appealed this matter to the U.S. Supreme Court, and, as it turns out, the majority opinion agrees with me.

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I’m An Adult. Can My Stepparent Adopt Me?

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When people think of adoption, they generally envision an adult adopting a minor child.  The adult may be a close relative or stepparent of the child, or not related to the child at all, but this is seen as the norm.

But can an adult adopt another adult?  Can a stepparent adopt an adult stepchild?

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Five Legal Steps Florida LGBT Parents Should Take

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The unfortunate truth is that current Florida law is not conducive to recognizing the relationships that develop in lesbian, gay, bisexual, and transgender families.  However, there are steps that Florida and Tampa Bay LGBT parents can take to boost the recognition of their parental rights.

Adoption

If LGBT parents are committed to raising a child together and recognizing each parent’s rights, I highly recommend that partners consider adopting each other’s children.  This helps form an unbreakable legal bond between the children and each partner.  Though the law is not completely settled in this area, the judges in Hillsborough County (including Tampa) are granting adoptions by LGBT partners.  What’s more, an adoption attorney located in Hillsborough County (such as myself) can help Florida parents come before Hillsborough County judges no matter where in Florida the parents live.

Co-Parenting Agreements

Co-parenting agreements can be great evidence that LGBT partners intend to parent children together.  It can boost the argument that “psychological parenting,” or the formation of a parent-like relationship between a child and a non-legal parent, has occurred and make it or more likely that parental rights will be recognized by Florida’s legal system.

Hyphenated or Unified Last Names

A hyphenated or unified last name can go a long way in demonstrating to the Florida legal system that partners intended to raise children together.  For example, if partner 1 is named Jones, and partner 2 is named Smith, it would be helpful to have all partners and children’s last names hyphenated or unified, so that everyone has a last name of Jones-Smith, Smith-Jones, Smones, Jith, etc.  Florida has laws to aid in legal name changes.

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