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?
Because Florida defines marriage strictly as a union between one man and one woman, and it does not recognize same sex marriages performed in other states, the status of children of same sex marriages is unclear.
It is likely that the spouse without a biological connection to the child, or the spouse that was not part of a prior adoption process, could be denied fundamental parenting rights, such as the right to spend time with the child or make decisions concerning the child’s health and welfare. These denial of rights might come into play in case the spouses separate, or one of the spouses dies, becomes incapacitated, or is incarcerated.
To preclude the possibility of denial of parenting rights, any same sex couple that intends to raise a child together as co-parents should, among other things, consider a second parent adoption. This is a court process where partner 2 is recognized as a child’s legal parent without cutting off the rights of partner 1.
Though not all judges in Florida will perform second parent adoptions, such adoptions for LGBT parents are regularly performed here in Hillsborough County for couples living throughout the state.
If you want to learn more about Florida same sex adoptions or your Tampa Bay family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.