Posted by Nydia Streets of Streets Law in Florida Same-Sex Family Law
One area of Florida family law that is evolving is same-sex family law, particularly as it relates to children born during a same-sex marriage who are not adopted by or biologically related to one of the parents. This issue arose in the case McGovern v. Clark, 5D19-1525 (Fla. 5th DCA June 12, 2020).
The parties were married in New Hampshire in 2013. Before their marriage, one of the spouses gave birth to two children. The children were given the last name of the other spouse, but the birth certificate only listed the birth mother as a parent. Subsequent to their marriage, the birth mother gave birth to two other children, both of whom were given the other spouse’s last name. Only the birth mother was listed as a parent on the birth certificate of those children as well. The spouse who was not biologically related to the children did not adopt them, but the parties lived together as a family unit.
Upon the parties’ separation, the spouse who was not biologically related to the children filed for divorce, requesting that the court address timesharing and parental rights. The biological parent countered with a motion to dismiss the claims related to the children, arguing that because the children had not been adopted by the other spouse, they shared no biological ties, and the biological father's rights had not been terminated, there was no jurisdiction to award parental rights to the other spouse. The trial court denied the motion to dismiss as it relates the children born after the parties’ marriage, and the appellate court noted this decision was not appealed. However, the trial court granted the motion to dismiss concerning the children born before the marriage, and that decision was appealed.
The appellate court focused on § 742.091, Fla. Stat. which provides that if a “mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock” The appellate court held “‘[P]aternity and legitimacy are related, but nevertheless separate and distinct concepts.’ Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997). Legitimacy refers to the status of a child born to legally married parents, while paternity refers to the status of being the only one natural, or biological, father of a child. [internal citation omitted] This case does not involve paternity. Instead, the question is whether [the children born before the marriage] became legitimate, and thereby, ‘children of the marriage,’ by virtue of [the parties’] subsequent marriage pursuant to section 742.091. To answer this question, [the spouse not biologically related to the children] was not required to prove a biological connection to [the children born before the marriage].”
Accordingly, the appellate court held “Consequently, we conclude that the trial court erred in determining that it is a ‘natural conclusion’ that section 742.091 requires that the ‘reputed father’ must be the child’s biological father and dismissing all issues related to [the children born before the marriage] in the dissolution proceedings. Contrary to the trial court’s determination, section 742.091 does not require a biological connection.” The case was remanded for the trial court to decide “whether biology notwithstanding, [the spouse not biologically related to the children] met the requirements of section 742.091.”
Same-sex child custody issues in Florida present a myriad of considerations which should be taken into consideration when determining how to proceed in any given case. Schedule a consultation with a Miami same-sex family law attorney to understand how the law may apply to your case.