Same-Sex Marriage and Parental Rights
On January 6, 2015, same-sex marriage became legal in Florida. That same day in Miami, Jennifer Scott, went to court seeking the dissolution of her same-sex marriage. Now Florida also must let gay and lesbian couples divorce.[i] It was “a very liberating moment,” Scott said. “It let all the angst, frustration and anxiety that was lying under the surface for six years finally be released.”
Until January 6, 2015, same-sex couples were trapped in a legal limbo. Jennifer Scott, like many other gay couples, had married in other states, but Florida considered their unions illegal, and would not divorce them. Nor could these couples divorce where they married because of residency requirements for divorce in those states.[ii]
It is estimated that there are nearly 50,000 same-sex couples in Florida, though it is unclear how many are married. UCLA’s Williams Institute, which studies what happens after states lift same-sex marriage bans, estimates that Florida can expect at least 25,000 same-sex weddings over the next three years. Further, because other states have performed same-sex marriage for up to a decade, it is likely there is a pent-up demand for divorce of gay couples in Florida.
With the recent rise in same-sex divorces, there are many issues relating to children and parenting. Same sex married couples who have children and are divorcing may have different rights as it pertains to the children. Many times only one of the partners has legal rights over the children. For example, both partners are the legal parents of children if:
(a) The children were born into a marriage in a state where the marriage confers parental rights on the non-biological partner, or
(b) The non-biological partner adopted the children or established a parent-child relationship through a parentage action, or
(c) The two partners jointly adopted the children.
Where both parents have equal rights over the children, child-related disputes should be handled by the courts just as they are for a heterosexual divorce. In those cases the judge considers a number of factors and renders a decision that is in the best interests of the children.
If, however, only one of the partners is the legal parent of the children, the result will be markedly different. If only one person has parental rights under the law, the second person will likely have no parental rights at all. This means that the spouse with no parental rights will not have visitation, a financial obligation to pay child support, or custody of the child. In Florida, when you do not have legal parental rights, you may not receive custody or visitation.
If one of the partners does have legal parental rights, it will become even more important to have a shared custody agreement drafted that both parties can agree upon. Think about the child. Often divorce gets personal. It becomes more about the couple splitting than the children. However, when a child has been raised by two people for many years, that child may see both parents as a huge part of his or life. The law doesn’t always take this into account. Thus, the responsibility is on the parties to come up with an agreement.
Some same-sex couples adopt. Others bring children into the world through sperm-donation. When adopting, if both parties are not listed as the adopting parents custody battles can be lengthy and cumbersome. Even if one spouse adopts a child before marrying the other spouse, both spouses should at some point adopt the child and both become legal parents to the child. This can occur through a second-parent adoption.
Some lesbian couples go to a sperm bank, find a donor, and then after one of the women becomes pregnant, the other woman can adopt the child legally or become the stepparent to the child. In Florida, the donor does not have any legal rights to the child. The courts look at the intent of the donor relationship. In Florida, same-sex couples should get a second-parent adoption. Second parent adoption will help to secure the rights of both parties in the event the parties break up or divorce. To obtain a second-parent adoption, you need the consent of the third party biological parent and there cannot exist two legal parents. For example, a gay or lesbian couple cannot obtain a second-parent adoption if, there is an opposite sex ex-spouse that still has legal parental rights to the child.
Now that the same-sex marriage ban has been lifted in Florida, it is unclear how judges in Florida will rule on the unique issues posed by same-sex divorces. However, due to the limited precedent judges have to rely on, it is clear that having an experienced attorney to assist with your divorce is vital. There will be unique challenges that same-sex couples will face relating to child custody. However, having an agreement as to custody will help alleviate many of those problems. In sum, when questions arise about what you need to do to protect your rights before, during, and after a divorce, consult with an experienced divorce attorney. Florida may be lifting the same-sex marriage ban, but it is never too early to consider protecting yourself.
[i] Nohlgren, Stephen. “Same-sex Marriage in Florida Enables Same-sex Divorce.” Tampa Bay Times. N.p., 10 Jan. 2015. Web. 27 Aug. 2015.
[ii] Florida has a residency requirement that requires a divorce be filed in the location where the filing spouse resides and requires that one of the parties must live in Florida for a minimum of six months. However, the spouse seeking divorce may file for the dissolution of marriage in any county in which either or both spouses reside. To obtain a divorce in Florida, the person seeking divorce must prove that the marriage is irretrievably broken.