This week, a Bradenton adult adoption was featured on the Ellen DeGeneres Show. Monyay, 19, appeared with her new adoptive mom, Leah Paskalides. You can see a video clip below.
If your child is born while you and your spouse are married, you both will always be considered the parents of the child, right? Well, not necessarily. LGBTQ families should be aware of their family law rights. And according to Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018), those family law rights may be at risk.
Facts of Simmonds v. Perkins
Simmonds v. Perkins involves a Husband, a Wife, and a Biological Father. While married to Husband, Wife has an affair with Biological Father. Wife gets pregnant from Biological Father. While still married to Husband, Wife gives birth to child.
Now, Biological Father did not know that Wife was married to Husband at the time of the affair, and once Biological Father did learn about the marriage, Wife told him that the marriage was only for “immigration purposes.”
After the child was born, Biological Father would visit the child regularly and paid Wife child support. Eventually, Biological Father filed an action in court to be named the child’s legal father, have all of the rights of a father (including ability to make decisions and right to spend time with the child), and take on the obligation of child support.
Wife files a motion to dismiss the action because the child was born during an intact marriage between her and Husband. Traditionally, that meant that there was a strong legal presumption that Husband was the legal father of the child, and it was very difficult for any third party to challenge this status. Husband would later join as a party and also requested that his rights be respected and the case be dismissed.
The Tampa Bay Times recently ran a story about the Gift of Adoption Fund. Gift of Adoption Fund is a 501(c)(3) organization with a chapter in Florida that helps prospective adoptive parents in need defray some of the costs of adoption.
You can find portions of the Tampa Bay Times story below.
Florida has not had the best history when it comes to the rights of same-sex couples. For the longest time, the state had a law on the books that gay men and women were forbidden from adopting a child. Florida not only enacted a so-called Defense of Marriage Act statute but enshrined its opposition to same-sex marriage in the state’s constitution. Further, even once Florida courts ruled that the state must recognize marriage between people of the same sex, it was unclear whether the state would permit same-sex divorce.
Fortunately, the state has come a long way. The “gay adoption ban” is no longer on the books. The U.S. Supreme Court has ruled that a ban on the issuance of marriage licenses to same-sex couples is unconstitutional, as is a refusal of one state to recognize a same-sex marriage solemnized in another state. And it has become clear that circuit courts in Tampa Bay and around the state must give same-sex spouses the opportunity to dissolve their marriage.
So, at this point, can two parents of the same sex appear on a Florida birth certificate?
This week, the U.S. Supreme Court ruled that a state must give full faith and credit to a judgment granting a second parent adoption issued by a court of competent jurisdiction of another state.
A second parent adoption is similar to a stepparent adoption, where one spouse adopts the other spouse’s child, except that the petitioner in a second parent adoption is not married to the child’s legal parent. Second parent adoptions were most closely associated with same-sex partners as, until recently, same-sex marriages were not permitted or recognized in Florida and around the country.
In the case, V.L. v. E.L., 577 U.S. ___ (2016), two women, E.L. and V.L. were in a relationship from 1995 until 2011. About seven years into the relationship, E.L. became pregnant via assisted reproductive technology and gave birth to a child (and a couple of years later, to twins). The women raised the children as co-parents.
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.
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.”
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:
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?
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:
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.
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 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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