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Florida Supreme Court Rules Lesbian Egg Donor Has Right to Partner’s Child

In a landmark decision in the matter of D.M.T. v. T.M.H., the Florida Supreme Court ruled that a woman who donated her fertilized egg to her partner, who in turn gave birth to a child, has a right to parent the child.

Last year I summarized the facts of this case when it was going through the Fifth District Court of Appeals of Florida:

Two women are in a committed lesbian relationship when they decide to have a child together using reproductive technologies.  One woman (the “Genetic Mother”) supplies the egg and has it fertilized.  That egg is then implanted into her partner (the “Birth Mother”) who gives birth in 2004.

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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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Florida Transgender Name Change

Transgender residents of Florida, just like all other residents, have the right to petition the court for change of a legal name.  As in every name change case, whether the petition will be granted is determined by the following eligibility guidelines:

  • Whether the petitioner has an ulterior or illegal motive in seeking the name change (such as attempting to avoid criminal prosecution, attempting to avoid a debt, or attempting to assume the identity of someone else).  Though there is not much case law on the matter, changing a name to reflect a transgender identity should not be considered an ulterior motive.

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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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Five Legal Steps Florida LGBT Parents Should Take

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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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 May Expand Domestic Partnership Recognition

The City of Tampa is considering an ordinance that would recognize domestic partnerships from communities around the United States.  Currently, Tampa only recognizes the rights of those domestic partners who have registered with Tampa’s domestic partnership registry.  According to the Tampa Bay Times:

Related:  Five Legal Steps Florida LGBT Parents Should Take

City Council instructed its attorneys to draft an ordinance that would allow Tampa to offer equal protection to couples recognized in domestic partner registries outside the city. Council members had considered creating agreements with surrounding municipal governments to recognize each others’ registries. But seeing as that process that council member Yvonne Yolie Capin said could be “arduous,” the council opted to draft a law allowing Tampa to recognize other registries — regardless of whether those cities reciprocate.

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A draft of an ordinance is scheduled to be reviewed by council members on Sept. 27.

Tampa’s domestic partnership registry is open to couples who are 18 or older, unmarried and not related by blood, who live together and consider each other to be immediate family. Registered domestic partners each have rights historically recognized for immediate relatives: Being notified that a partner has been in an accident, visiting each other in the hospital, making medical decisions for a partner who cannot do so, and making funeral arrangements for each other.

If you would like to learn more about your Florida family law rights, including adoption, child custody, or domestic partnership agreements, schedule a consultation The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our online form.

In A Florida Child Custody Case, Does It Matter That I Am Gay?

I have been seeing more clients who are coming out of the closet either during or following their divorce (or during a child custody case not related to divorce). Each client has asked whether the Florida court is going to take into consideration his or her sexual orientation.

Though, in determining child custody matters, a Florida judge must take into consideration the “moral fitness” of the parents (see Florida Statutes Section 61.13(3)(f)), the court may not make a custody determination based solely on whether a parent is gay. In fact, a parent’s sexual orientation should not be a determining factor unless it has a direct negative impact on the welfare of the child.

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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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