Posted by Nydia Streets of Streets Law in Florida Child Custody

Child custody issues in Florida same-sex marriage cases face undeveloped law sometimes. This means, the court is left to sort out how to apply statutes to situations that likely were not considered when the statutes were originally drafted. A recent case sheds light on how child custody arrangements involving a same-sex marriage are evaluated when relocation is sought.

The minor child who is the subject of this case was conceived by a woman who was married to another woman, and by a man who was married to another man. The biological mother and her wife appear as legal parents on the birth certificate for the child. The biological father was allowed visitation with the child by the legal parents. Eventually, the biological mother sought a divorce from her wife, and a custody dispute arose between them and the biological father. The biological mother sought to relocate while the divorce proceedings were pending. Her wife, the other legal parent, did not object to her relocation. The biological father, however, did object. After a hearing the court denied the request for temporary relocation, and the mother appealed, arguing the father had no standing to contest her relocation where he was not a legal parent.

The appellate court noted “Under section 61.13001, Florida Statutes (2022), a party desiring to relocate fifty or more miles from his or her principal place of residence must obtain an agreement from the other parent ‘and every other person entitled to access to or time-sharing with the child.’ § 61.13001(2)(a), Fla. Stat. In the absence of such an agreement, the relocating party must file a petition with the trial court. § 61.13001(3), Fla. Stat. The petition must be served upon ‘the other parent, and every other person entitled to access to or time-sharing with the child.’ § 61.13001(3), Fla. Stat.”

The court then held “Here, the trial court has yet to adjudicate the pending paternity petition. Nonetheless, the putative father is a person ‘entitled to access to or timesharing with the child’ pursuant to a stipulated, court-ratified temporary timesharing agreement. Thus, although both the mother and her former wife are the only two legally recognized parents on the birth certificate, the putative father has statutory standing to oppose the relocation.”

If you need help navigating the laws surrounding same-sex families in Florida, schedule a meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.