Recommend Article Facebook
U.S. and Florida Constitutions trump Florida's state law
The Alabama Family Rights Association has been saying for three years what the Florida Supreme Court determined recently in a judicial opinion.
From ABC News:
Tina's biological daughter turned 8 this week, but she has not seen the girl since Dec. 22, 2008, because of a custody fight with her former lesbian partner. The partner is unrelated to the child, but gave birth to her.
I thought I'd have her back on her birthday," said Tina, a law enforcement officer, whose name was never on the birth certificate and who has been denied parenting rights under Florida state law.
...[T]he Florida courts had to decide, who is the legal parent, the biological mother or the birth mother who carried the unrelated child for nine months in her womb?
A trial court summarily sided with Tina's ex-partner, citing Florida statute. "The judge said, 'It breaks my heart, but this is the law,'" according to the birth mother's lawyer, Robert J. Wheelock of Orlando.
But on Dec. 23, a state appeals court rejected the law as antiquated and recognized both women as legal parents.
Citing the case as "unique," the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trump Florida's law, according to the Orlando Sentinel, which first reported the story.
Both lesbian moms have parental rights, Daytona court rules in custody dispute
December 29, 2011|By Rene Stutzman, Orlando Sentinel
They fell in love, moved in together in a house in south Brevard County and had a baby girl. Now they are fighting over who should raise the child. But unlike most couples, they are two women. One donated the egg. The other had it implanted into her womb and carried the child to term.
So which one is the mother? The woman who bore the child says it is she and she alone.
A circuit judge in Brevard County, writing that it broke his heart to say so, ruled that she's right. Under Florida law, a woman who gives birth is the mother. Last week, however, a state appeals court in Daytona Beach overturned his decision, saying the other mother has parental rights, too.
The 5th District Court of Appeal ruled that the U.S. and Florida constitutions trump Florida law and give parenting rights to both women. State law, it added, has not kept up with the times.
This is a unique case, and the appellate courts in Florida have never before considered a case quite like it," it said.
Although a growing number of families have two parents who are the same sex, few involve children whose chromosomes come from one woman but who were carried to term by another.
Still, it's an important decision with a wider implication, said Nancy Polikoff, a law professor at American University Washington College of Law and expert on gay-and-lesbian family law.
Any ruling that supports the right of a same-sex couple … is important for its willingness to recognize that these families exist and a child raised in this environment shouldn't be forced to give up a parent," she said.
In this case the same-sex couple had been in a committed relationship for 11 years, according to court records. Several years ago, they decided to have a child, went to counseling to prepare for it and then discovered that one of them, then a 39-year-old law-enforcement officer, was infertile.
The couple went to a reproductive doctor, and the other would-be mom, then 34 and also a law-enforcement officer, donated her egg to be fertilized. It was implanted in her partner's womb, and a baby girl was born the first week of 2004.
The couple gave the baby a hyphenated version of their last names, but the child's birth certificate bore only the name of the mom who had carried her to term. The father was an anonymous sperm donor who had waived his rights.
The child treated both women as parents, according to the appeals-court ruling, even after they split up when the little girl was 2.
Then, a year and a half later, the birth mom disappeared with the child, leaving the country without telling her former partner where they had gone. Eventually the egg-donor mom tracked them down in Queensland, Australia. They have since returned to Florida.