Florida Gay Adoption: The Man And The Ban

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:

In 2004, two young children were placed in the foster care of “F.G.” after the children were found to have been neglected by their biological parents. At the time of placement, the 4 month old child had ring worm and an untreated ear infection. His 4 year old brother also had ring worm, arrived wearing a dirty adult size t-shirt and shoes that were several sizes two small, and did not speak.

In 2006, the natural parents’ rights were terminated. In the meantime, the children had recovered from their health and developmental issues and were thriving in F.G.’s care. Shortly after the termination of the natural parents’ rights, F.G. applied to the Department of Children and Family (the “Department”) for adoption of the children. Though the Department found that F.G. was a fit parent and it would be in the children’s best interests for F.G. to adopt them, the Department denied the application as contrary to Florida’s ban on adoption by homosexual persons.

In 2007, F.G. filed a petition for adoption with the court. After much deliberation, the trial court in 2008 found that the ban unnecessarily infringed on F.G.’s right to equal protection under Article I, Section 2 of the Florida Constitution. The trial court elaborated that the absolute prohibition on adoption by homosexual individuals was simply irrational while all other petitioners, including those with criminal histories or histories of substance abuse, were considered on a case-by-case basis.

The Department appealed the trial court ruling, and in 2010 Florida’s Third District Court of Appeal published its opinion. The District Court agreed that the ban was unconstitutional, and commented that “[e]xcept for homosexual persons, there is no automatic, categorical exclusion of anyone from consideration for adoption.” The District Court further noted that even those who have been found to have abused, abandoned, or neglected a child were not were not automatically disqualified from adopting another child.

The opinion also pointed out that no law prevented gay or lesbian individuals to be appointed as legal guardians or foster parents of children, and the ban inexplicably just applied to adoptions. Moreover, the District Court rejected the Department’s assertion that the ban had the rational basis of providing prospective adoptive children better role models and more stability in a household with a husband and a wife, as Florida has permitted single adults to adopt since at least 1943.

Social science, the District Court concluded, also could not be used as a rational basis for upholding the ban. At the trial level, world-renowned psychologists testified and provided the findings of studies that spanned over a decade on differences between homosexual and heterosexual parenting and households. The studies, which have been accepted and adopted by organizations including the American Psychological Association, American Psychiatric Association, and American Pediatric Association, found that the sexual orientation of the parents made no difference in parenting or adjustment of children.

Shortly after the Third District Court published its opinion, then-Governor Charlie Crist announced that his administration would not seek to appeal the case to Florida’s Supreme Court. Consequently, as no other district court has ruled to the contrary, the Third District opinion became binding on all Florida trial courts, and gay and lesbian individuals have exercised their right to adopt.

If you have questions regarding gay adoption or the adoption of a child by a second parent in a same sex relationship, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., a Tampa adoption entity, by calling us at (813) 443-0615 or filling out our contact form.

About Adam B. Cordover, Attorney-at-Law

Family Diplomacy is dedicated to helping clients restructure their families privately and respectfully. We practice exclusively in out-of-court dispute resolution, with a focus on collaborative divorce and family law, mediation, direct negotiations, and unbundled legal services. We maintain this out-of-court practice because we strongly believe that family disputes should be resolved in a private conference room, not in a hostile and public courtroom environment. This unique perspective on family law stems back to Adam B. Cordover’s experience studying International Affairs in Washington, D.C., and abroad. Adam had the rare opportunity to work closely with ambassadors and diplomats from war-torn regions around the world. He traveled around the globe, learning from diplomatic leaders as they applied dispute resolution techniques to tackle seemingly impossible conflicts. It dawned on him: If these techniques can work in the complex world of International Relations, why not Domestic Relations and Family Law? This realization lead Adam to create an exclusively out-of-court practice and to bring a more peacemaking approach to family law. In his previous role as a litigation attorney, Adam witnessed parties experience the negative emotional and financial effects that long, drawn out divorce battles can have on families. As a result, Adam has become a strong proponent of the Collaborative Process, where a structure is put in place so that life’s hardest moments do not have to be any more difficult than necessary. A thought leader in the international collaborative law community, Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida). Adam has been featured in or interviewed about collaborative practice by the Tampa Bay Times, Tampa Tribune, Orlando Sentinel, Miami Herald, Tampa Bay Business Journal, Florida Bar News, NBC, Fox 13, Bay News 9, ABC Action News, The World of Collaborative Practice Magazine, and Spirit FM 90.5. Adam regularly speaks at professional and civic organizations locally and internationally regarding the collaborative process. Adam B. Cordover is president of Next Generation Divorce, a 501(c)(3) and Florida’s largest interdisciplinary collaborative practice group with member attorneys, mental health professionals, and financial professionals throughout Hillsborough, Pinellas, Pasco, Sarasota, and Manatee Counties. Adam is also on the Executive Board and co-chair of the Research Committee of the Collaborative Family Law Council of Florida. Further, Adam is a graduate of the inaugural class of the Leadership Academy of the International Academy of Collaborative Professionals. You can learn more about us and our services at www.FamilyDiplomacy.com. Attorney Adam B. Cordover is admitted to the Florida Bar and the United States District Court, Middle District of Florida. His office is located at 412 East Madison Street, Suite 824, Tampa, Florida 33602.
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One Response to Florida Gay Adoption: The Man And The Ban

  1. Pingback: Is Florida’s Gay Adoption Ban Still On The Books? | ABC Family Law Blog

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