Family Diplomacy’s managing attorney Adam B. Cordover gave a presentation on “The New Family: LGBTQ+ Issues & Family Law” at the 2015 Fall Conference of the Florida Court Professional Collaborative (FCPC) of the Twelfth Judicial Circuit. The title of the Conference was “2015 Trends in Family Law.”
According to a recent report in the Tampa edition of Creative Loafing, in light of the recent Supreme Court decision and issuance of marriage licenses to same-sex couples, Florida’s Office of Vital Statistics is making the state’s marriage certificates gender neutral. From Creative Loafing:
Friday marked the anniversary of the anniversary of District Judge Robert Hinkle’s ruling that struck down the state’s gay marriage ban.
On the eve of that anniversary, LGBT equality advocates saw another small but symbolic victory, according to Equality Florida.
On May 29, 2015, Florida’s Second District Court of Appeal released its opinion in the matter of Shaw v. Shaw. It determined that Florida should give full faith and credit to a same-sex marriage entered into under the laws of Massachusetts, and that Florida courts have the authority to dissolve the marriage.
This has been a long, tough road, but this is truly a great day for equality.
Keiba Shaw has authorized the release of the following statement:
An uncontested divorce between a man and a woman in Florida can be resolved in as little as a month. That’s just four weeks to dissolve a negative situation that both parties agree needs to end. It doesn’t matter how long they were married or WHERE they were married.
My [soon-to-be] former spouse and I used a next generation process, collaborative divorce, that was designed to resolve conflicts in a manner that was private, non-litigated, peaceful, and respectful. We reached a full agreement on all issues in two meetings that were one week apart.
And yet, because my former spouse and I are both women, my divorce has taken more than a year to be granted and has unnecessarily disrupted my life and that of my family members. The legal complexities have limited my options and the resulting financial burden has made it harder to take care of my family the way I envisioned.
It has long been the law in Florida that when a child is born during an intact marriage between a man and a woman, the husband shall be placed on the birth certificate. Generally, this is the case even if the husband is not the biological father of the child; the right of the child to be considered “legitimate” is so strong that it does not matter whether there is an actual genetic connection between the child and the father.
Now that Florida’s ban on same-sex marriage has been declared unconstitutional by a federal judge and marriage licenses are being provided to same-sex couples, will a hospital put a woman on a birth certificate if her wife gives birth?
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.
Last week, Federal Judge Robert L. Hinkle clarified his ruling in Brenner v. Scott to state, definitively, that the U.S. Constitution requires Florida clerks of court to issue marriage licenses to same-sex couples. This has brought great jubilation that marriage equality is finally recognized in Florida. Clerks throughout the state (including in my own Hillsborough County) have begun issuing marriage licenses, and some even have officiated over marriages.
Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding
However, is same-sex marriage yet completely equal in Florida? Is it recognized for all purposes in Florida, including for purposes of dissolving that marriage?
As Florida does not currently recognize same-sex marriages, some judges have interpreted the state’s ban as precluding them from granting same-sex divorces. I am involved in a case in which two women married in Massachusetts, moved to Florida, and separated. They utilized the interdisciplinary collaborative process to come to a full settlement agreement and filed a petition for dissolution of marriage in Tampa. The judge ultimately denied their petition, determining that she did not have jurisdiction to dissolve that which the state does not recognize.
And we appealed. This has become the first divorce matter in Florida to challenge Article I, Section 27 of the Florida Constitution banning recognition of same-sex marriage.
In the meantime, the gay marriage ban is still in effect. So is there anything that same-sex spouses can do to legally end their marriage in Florida?
We know all men are not created equal in the sense some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men.
But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution … is a court. It can be the Supreme Court of the United States or the humblest [lower] court in the land. . . . Our courts have their faults, but in this country our courts are the great levelers, and in our courts all men are created equal.
Lee, Harper. To Kill a Mockingbird, pg. 274 (1960). Mockingbird is a timeless novel set in the fictional town of Maycomb, Alabama in the 1930’s. Discrimination was the norm and “separate but equal” ruled the day. Plessy v. Ferguson, 163 U.S. 537 (1896). The words are from a different time, yet they apply directly to the laws being challenged in this Court.
You can find the answer brief in the Tampa same sex divorce appeal at the following link: 2D14-2384 Shaw Appellee’s Answer Brief.
Florida Attorney General Pamela Bondi has filed a motion to intervene in my client’s same sex divorce matter. The parties married in Massachusetts, moved to Florida, came to a full settlement agreement via the Collaborative Divorce Process, and asked a Hillsborough Judge to dissolve their marriage. Their request was denied and their case dismissed. The case is now in the Second District Court of Appeals.
The Tampa Tribune has reported the development as follows:
Attorney General Pam Bondi may be fighting to prevent same-sex couples from marrying in Florida, but she is also taking a legal position that has the effect of forcing gay couples who married elsewhere to stay married, lawyers in a Tampa case say.
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Can two women who were married in Massachusetts but now are residents of Florida divorce in Florida? That is the question that my Tampa client and her wife were looking to have answered in the affirmative. The trial judge determined that she did not have the power to dissolve a marriage that the State of Florida did not recognize.
When we appealed, we asked a panel of judges to skip the normal appellate process and go straight to the Florida Supreme Court. Our argument was that this case involves issues of such public importance, and that determining whether married couples of the same sex can divorce affects the administration of justice throughout the state. Our request for the expedited process was denied.
And then we got word yesterday. The judges of the Second District Court of Appeals decided en banc (with the input of all of the judges of the Court, excluding a judge who had recused himself) that this case should go straight to the Florida Supreme Court.
Below are portions of the brand new ruling:
