At our law firm, we are only too aware of the difficult legal issues that can face same-sex parents. Despite the legalization of same-sex marriage throughout the country, challenging situations can still arise concerning parentage, custody and visitation in same-sex relationships.
In particular, legal complexity can evolve when parents used assisted reproductive technology to conceive a son or daughter, and one or both parents are not biologically or legally related to the child.
In 2017, a Florida appeals court decided a case that illustrates some of these issues. De Los Milagros Castellat v Pereira involved a lesbian couple that had used reproductive technology to have a daughter with special needs during a 10-year relationship. The couple never married, but “presented themselves as a married couple.”
The birth mother and her partner gave the child the partner’s last name, but the partner, who was not biologically related to the child, never adopted her. Both partners were involved in medical and therapeutic care for the child and the three lived in a home the couple owned jointly.
When the child was four, the couple separated. The birth mother changed the daughter’s last name and cut off contact with her former partner, who then filed a petition in court seeking parental rights and parenting time. The trial court dismissed her petition and the appeals court affirmed, noting that the case “involve[d] an area of law — regarding how advances in reproductive technology impact the definition of the modern family — which is struggling to catch up with and reflect the rapid changes taking place in society.”
Parental right to privacy
The court explained that a parent’s right under the Florida Constitution to privacy establishes a “zone of autonomy around a nuclear family into which a judge, legislator, or official, no matter how well intentioned, simply cannot go.” This privacy zone includes the “fundamental right” of a parent to decision making for his or her child’s care and control.
The exception is if a child is “at risk of significant harm.” Under this narrow standard, it is difficult for people who are not legal or biological parents, or birth mothers, to obtain the right to custody or visitation.
In this case, the court observed that the child might benefit by the “additional financial, social, spiritual, and emotional support the former partner might provide,” but that the birth mother’s privacy and related parental decision-making rights legally outweigh that possibility.
Any Floridian in this or a similar situation should consult an attorney as early as possible, even before the child is conceived and born, to understand what legal options are available, including a gestational surrogacy contract, adoption or other arrangements. At any stage of a same-sex relationship or marriage, however, an experienced family lawyer can provide advice about your legal options concerning parentage and child access.
It is important to remember that this area of law is quickly evolving and changing, so up-to-date advice is advised.