The Florida Bar
American Bar Association
Weston Florida Chamber of Commerce

Evolving Litigation Concerning Same-Sex Couples or Nontraditional Households in the State of Florida

President Obama recently stated that he was in favor of same sex marriages. The impact on the statues such as the State of Florida which fails to recognize same-sex marriages will be nominal until domat is repeated in this Obama's decision may be politically motivated, but it is a step towards equality and fairness for all citizens of the United States. The president of the free world is the firs sitting president who believes that no one should be discriminated based upon race, color, national origin, religion or sexual orientation.

Many people in the United States have personal views based upon their religions on the issues of same-sex marriages. Our country and the United States Constitution entitled "ALL" people to have Equal Protection under the laws of the United States of America.

The defense of Marriage Act (DOMA) is a Federal Law which precludes marriages between members of the same-sex. This law has also been passed by the Florida State Legislature and preclude. It is possible that the Federal Defense of Marriage Act will be repealed and the question is whether or not the State DOMA statue also repeated.

At this time, there are at least five States which permit same-sex couples to marry. There are at least eight states which permit or allow same-sex partners in civil unions or domestic partnerships that provide all or most of the substantive rights and obligations of marriage under state law.

Many States expressly forbid same-sex couples from marriage such as the State of Florida which passed the Defense of Marriage Act and will not recognize marriages entered into the legitimately from other jurisdictions.

Based upon conflicting laws, same-sex couples crossing state lines can have legal consequences on their rights and obligations.

In addition to jurisdictions recognizing civil marriages between same-sex couples, many other states including Colorado, Hawaii, Maryland, Nevada, New Jersey, Washington, and Wisconsin provide civil unions, domestic partnerships, or other forms of relationship for same-sex couples. There are many benefits available under these laws for same-sex couples in various states.

Although there are laws which allow civil unions and domestic partnerships, they fall short of full equality in many respects. The federal government does not provide the same benefits to these couples as they do to traditional married couples. The restrictions from state-to-state clearly show a stigma of second-class status and laws that do not have the same personal and social meaning in each state.

DOMA precludes same-sex couples who were legally married from receiving Social Security, Survivor Benefits, Federal and Income Tax Benefits that are available to married couples. Health Insurance, pensions and other spousal benefits are all denied pursued to the Federal Defense of Marriage Act.

At this time, there are several cases which are proceeding on the federal level to challenge the constitutionality of DOMA in the Federal Court System, because the law fails to protect the equal treatment of same-sex couples.

The state of the law on marriage is changing and this will impact same-sex couples and non-traditional couples at the state level as well.

In the last two years in Florida several important cases will have an impact on the rights of same-sex partners and non-traditional families in the State of Florida.

In 2010, the landmark case of In re:Gill, ended Florida's 33 year ban on adoptions by homosexuals. In this case, two openly gay men petitioned the court to allow them to adopt two boys who they had been raising as foster parents since 2004.

After a four-day trial challenging the law, Circuit Court Judge Cindy S. Lederman declared the ban on adoptions by homosexuals violated the equal protections rights of the children and their prospective parents under the Florida Constitution.

The State of Florida appealed this decision, but the Florida Third District Court of Appeals upheld the ruling in favor of granting the petition for Adoption. The court found that the Florida Statue banning gay adoption was unconstitutional.

In the past, even though homosexuals were prohibited from adopting, in the State of Florida, these individuals were permitted to be foster parents or legal guardians.

At the Gill Trial the Florida Department of Children and Families, which operates the state foster care system, admitted in court that, "gay people and heterosexuals make equally good parents... that placing children with gay adoptive parents, does not harm or disadvantage children emotionally or physically... and that gay people could be ideal placements for some children.:"

In the Circuit Court Judge Cindy S. Lederman's Ruling she stated specifically, "reports and studies find that there are no differences in the state parenting of homosexuals or the adjustment of their children. These conclusions have been accepted, adopted and ratified by the American Psychological Association (APA), the American Psychiatry Association (APA), and the American Academy of Pediatrics (AAP), the Child Welfare league of America (CWLA), and the National Association of Social Workers (NASW). As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise the best interest of the children are not preserved by prohibiting homosexual adoption." After the determination in the GILL Case, supra, was finalized, here have been numerous Second Parent Adoptions in the State of Florida. A second parent adoption occurs when an unmarried parent adopts her partners biological or adoptive child. This adoption gives the second parent full potential rights, legal and custodial. Second parent adoption is critical in the State Of Florida, because of DOMA precludes same-sex marriage rights. Based upon this fact, there can be no step-parent adoptions for same-sex couples or nontraditional partnership.

Without second parent adoption, the original parent cannot rely on the other parent's legal duty to provide for their child. The second parent adoption also procures legal rights to the partner in the event of a break up.

In Florida, there are no specific laws regarding Second Parent Adoption at this time (2012). Due to this basis, some Circuit Court Judges will treat the adopting parent as an unrelated person. In these instances, Home Study and Custody Investigation as well as criminal background checks will need to be performed. Other Circuit Court Judges will treat a Second-Parent Adoption as a Second-Parent Adoption. The process involves receiving the consent of the other partner and it is a much quicker, easier, and simpler.

In another recent decision which may have a large impact is the case of T.M.H.D.M.T., 2011 WL 6437247 (Fla 5th DCA, December 2011). In the recent case of T.M.J, supra, the issue before the court was whether two women involved in a lesbian relationship for several years share parental rights and responsibilities to a child born out of that relationship. One of the women was deemed the birth mother and the other the biological mother. The court deemed the case a "case of first impression" in the State of Florida.

The details of this case were not disputed. The two women in this case were involved in a committed relationship for 1995 to 2006. They shared all of their expenses together. The same-sex partners sought reproductive medical assistance. They jointly paid a reproductive doctor to assist in the process. One of the partners contributed her fertilized ova which were then implanted into her partner's body. The in vitro fertilization procedure was successful and a child was conceived.

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