In Florida, same sex adoption is a legal proceeding that grants full parental rights to the non-biological spouse in a same-sex relationship. Same sex adoption is fully legal in the State of Florida and is more crucial than you might think.

On February 17, 2023, a court in Oklahoma rejected a same sex woman’s right to custody over the child she had raised for more than two years with her estranged wife and should serve as a cautionary tale for same sex parents.

In the Oklahoma case, a child was born to the wives through a known sperm donor. The wife gave birth to the child during an intact marriage and both mothers successfully raised the child together for more than two years. Both mothers were on the birth certificate. The biological mother reconnected with the sperm donor after two years and began an extra marital relationship. At some point, the biological mother and the sperm donor moved in together and withheld the child from the non-biological mother. The non-biological mother filed suit for custody rights to the minor child. The court ruled that the biological father’s paternity rights trumped the non-biological mother’s rights as the laws in Oklahoma have not yet established “maternity” rights and granted custody of the child to the biological mother and the sperm donor “father”.

Gay adoption in Florida was outlawed until 2010, when a Florida Appellate Court ruled the law banning gay and lesbian people from adopting was unconstitutional. Then in January 2015, the US Supreme Court legalized same sex marriage as a result of the Obergefell v. Hodges decision. The legalization of marriage then allowed same sex couples to complete stepparent adoptions. On June 24, 2022, the US Supreme Court overruled Roe v. Wade, taking away rights that had been available to women for decades. As a result, many same sex couples are left wondering how best to protect their rights in the face of the potential overturning of Obergefell.

Now that same sex marriage is legal in Florida, couples can take advantage of the cheaper and more streamlined stepparent adoption. The most common situation where stepparent adoption is necessary is where the spouses are both female and one woman is the biological parent of the child,

Florida and national LGBTQ+ rights organizations recommend that LGBTQ+ parents do everything they can to solidify the legal rights of the non-biological parent. By far, the most important step gay and lesbian couples can take to solidify the parental rights of non-biological parents is a stepparent or second parent adoption. Stepparent adoptions are used for married same-sex couples while second parent adoptions are for unmarried couples. In either case, the couple obtains a court order that grants full and equal rights to the non-biological parent.

Due to biology, the issue is more pressing for families with two women than with two men. Lesbian couples are more likely to be in a situation where one woman is the biological parent while the other woman is not. Even if both women are on the birth certificate for their child, a court judgment of adoption has much greater staying power than a mere birth certificate. In theory, a state legislature could invalidate a birth certificate or refuse to recognize birth certificates with same sex couples as parents. But court orders must be afforded full faith and credit by all states.

Now that same sex marriage is legal in Florida, couples can take advantage of the cheaper and more streamlined stepparent adoption. Prior to 2015, same sex couples were required to use the more expensive and cumbersome route of second parent adoptions. A stepparent adoption allows one person to adopt the child of their spouse. The most common situation where stepparent adoption is necessary is where the spouses are both female and one woman is the biological parent of the child, and the other woman is the biological parent’s wife. Through stepparent adoption the current non-legal parent keeps their own parental rights. Another scenario where stepparent adoption is necessary is with gay male couples where a surrogate mother has given birth to a child using one of the men’s sperm.

Some married couple assume that taking care of their spouse’s or partner’s child gives them legal rights to the child. This is a mistake. The only sure way to secure your legal rights is through adoption. Adoption will protect the current legal (often biological) parent’s rights, the rights of the adopting parent, and the rights of the minor child. This is especially important if the parties break up or divorce. Adoption secures the legal rights of both parents in the event of separation or dissolution of the marriage.

Do not delay in protecting your rights. The current legal climate may or may not protect you without formal adoption of your child. If you are a gay parent and would like to know more about your rights, contact our office for a consultation at 850-252-4674. At Trusik Law, we care about your life and work hard to protect your rights.