Central Florida Gay & Lesbian Law Association
A Voluntary Bar Association of The Florida Bar
FAMILY LAW
AS IT AFFECTS GAYS AND LESBIANS IN FLORIDA
By Michael E.
Morris, Attorney at Law
Updated March 2007
First, this is a summary of some frequently covered areas in family law
as they affect gays and lesbians in this state.
It is not a comprehensive explanation of family law.
Further, the law can change.
For specific situations, you should consult an attorney.
1.
ADOPTION
Florida Statute 63.042(3) indicates
that no person may adopt if that person is a homosexual.
That ban applies to adopting a child or even an adult.
There is no definition in that chapter as to what a homosexual
is. The Florida courts have
indicated that a homosexual could be one who is known to engage in
current, voluntary, homosexual activity.
State Department of Health and Rehabilitative Services v. Cox,
627 So.2d 1210 (Fla. 2nd DCA 1993).
In that case, the court did allow the prohibition against
adoption by gays to stand.
Further, the federal appellate courts have agreed that it is legal to
prohibit adoptions by gays in Lofton v. Secretary of the Department
of Children and Family Services, 358 F.3d 804 (11th Cir.,
2004). The United States
Supreme Court has declined to hear the issue.
The ban does only apply to homosexuals
in that narrow definition, so it is unclear how that ban could apply to
those people who are bisexual or transgendered.
There are also questions about how recent homosexual activity
would have to be to be “current”, or if you could engage in involuntary
homosexual activity.
Florida is the only state that
prohibits adoptions by gays and lesbians as individuals by statute, with
the note that Utah does prohibit adoptions by anyone not part of a
married heterosexual couple.
Mississippi does prohibit gay couples from adopting.
All other states will let at least a single gay person adopt, and
may even do what is called a second-parent adoption for a gay couple.
Florida’s legislature is finally taking some baby steps to
correct or lessen this ban, but the outcome of that is far from assured
at this point.
Therefore,
gays and lesbians considering adoption should look to establish
residency in another state or look to adopt children internationally if
possible. You will not be
able to adopt the children here in
2.
“PALIMONY”, DOMESTIC PARTNERSHIP AGREEMENTS, AND CO-PARENTING
AGREEMENTS
The courts in this state have upheld at
least one agreement between two lesbians that had a property agreement.
Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA
1997) It is important to
note the court indicated that the agreement must be in writing and must
not involve sexual services.
This case indicates quite clearly why it is best to have written
agreements regarding property among couples.
These are called domestic partnership agreements, and they spell
out what rights and property each person has if the relationship ends.
They might also be important in determining a person’s estate if
one of the parties dies.
A co-parenting agreement is an
agreement determining visitation and custody of a child if the parties
split up. They can be
prepared prior to the birth of a child or after birth.
They are usually used for cases of artificial insemination.
We believe the parties should be able to contract regarding these
matters, but at least one court in the less progressive part of the
state has issued a preliminary opinion that held that even with a
co-parenting agreement, the rights are unenforceable.
Therefore, you do enter into them with some risk they may not be
enforced. However, there is
some moral force if someone violates a written agreement.
And they may be enforced by courts in the future.
3.
MARRIAGE, CIVIL UNIONS, AND DOMESTIC PARTNERSHIPS
While many states have enacted
marriages for gays and lesbians, civil unions, or domestic partnership
registries, it is very unlikely that will happen soon in Florida due to
the regressive political climate.
There will likely be a constitutional amendment placed on the
ballot in 2008 to limit any same-sex benefits.
It is labeled a marriage protection act, but the proposed
language may be more far-reaching than it is advertised.
If you do
choose to avail yourself of a marriage, civil union, or domestic
partnership in another state, be aware that you most likely will not be
able to take advantage of any benefits of that in this state at this
time with any public institution. Private institutions though may uphold
or honor such marriages or unions for certain benefits.
Those are sometimes taxable to you though.
Some localities, mainly in South
Florida, have domestic partnership benefits.
Keep in mind those are only good in those particular
jurisdictions. Also, if you
are coming from another state to
4.
CUSTODY AND VISITATION
If you are involved in a custody battle with a non-gay person –
i.e. coming out in a divorce, be aware that there have been several
cases in Florida indicating that sexual orientation alone is not a basis
for denying custody or visitation.
Jacoby v. Jacoby 763 So.2d 410 (
5.
ARTIFICIAL INSEMINATION, PATERNITY AND CHILD SUPPORT
There are
clinics in Florida where you can get artificially inseminated.
Once a child is born from that process, you will only be able to
put the woman carrying the child on the birth certificate as the mother.
There is no legal father if the sperm was donated, pursuant to
Florida Statute 742.14.
Further, you may only pay reasonable compensation directly related to
the donation of sperm or eggs in the reproductive process.
If
a person has a child through any process other than donation, you could
be a father liable for child support or a mother facing a father with
visitation rights. It would
be in everyone’s best interest to go through a recognized sperm clinic
and to prepare a Contract for Donation of Genetic Reproductive Material.
6.
ALIMONY
If you are
receiving alimony, there has been a recent change in the law that will
reduce or end alimony if you are residing in a “supportive
relationship”. F.S. 61.14
This may also cover situations where someone is residing with a same-sex
partner after a marriage.
However, there may be a good-faith argument that it does not apply to
same-sex couples. Further,
the court has to look at a number of factors in the statute.
There have been few court cases testing this yet, so please
consult an attorney if you have concerns about this.
If you are
leaving an opposite-sex marriage, you should consult an attorney about
your or your spouse’s entitlement to alimony.
The caselaw is mostly settled in Florida that it is only
financial misconduct (for example - hiding or depleting marital assets
or spending marital assets on a boyfriend or girlfriend to the
marriage’s detriment) that will affect alimony.
Noah v. Noah, 491 So.2d 1124 (Fla. 1986) However, there
are a few legal opinions that could be used to penalize a same-sex
affair during a marriage.
Baxter v. Baxter, 720 So.2d 624 (Fla. 5th DCA 1998)
7.
DOMESTIC VIOLENCE
The definition
of a “family or household member” for purposes of domestic violence
includes gay and lesbian couples.
This is if they are presently residing together as if a family or
have resided together in the past as if a family.
Further, you can get a dating violence injunction if you have
been threatened or hurt.
To obtain a domestic violence
injunction please call the Domestic Relations section of your local
circuit courthouse during business hours or contact law enforcement
after hours.
8.
NAME CHANGES
Some gay and lesbian couples want to
change their last names to the same name or hyphenate names.
This is a relatively easy process that can be done at any circuit
courthouse, and may not require an attorney.
You will have to be fingerprinted for this.
You can obtain the cards from the courthouse.
The court will want to make sure you are not trying to evade law
enforcement or creditors before granting the petition.
Once it is granted, follow up with the Bureau of Vital Statistics
if you were born in Florida.
If you were born outside Florida, follow up with the state that issued
your birth certificate to get a corrected birth certificate.
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