Although significant strides have been made regarding same sex marriage, certain areas remain unsteady in the court system. One of these areas include same sex parentage. If you are a same sex parent, it is imperative to know your rights to the child you are raising with your partner, and the steps you may need to take to affirm your parental rights. Speak to a child custody attorney today to determine your legal relation to your child and if actions must be taken to affirm the emotional bond.
Although Florida provides for the presumption of parentage be given to those engaged in a lawful marriage at the time of the child’s birth, there are many methods to forming a family in today’s society. For instance, with same sex couples, many bring children in from prior relationships, or those adopted on their own into a new relationship. In these blended families, the second parent will have no legal rights to the child without proper court action, especially if the couple is not engaged in a valid marriage. If the parent is not biologically related to the child, or has gone through the process to legally adopt the child the court may deny parental rights to that individual.
A same sex partner will automatically gain parental rights to a child if the child was born during an intact marriage. Further, if the same sex partner adopted the child, they will have legal rights. However, issues of child custody and same sex partners arise when there was no legal action taken to adopt the child, the child is not biologically related to one parent, or the child was born outside of marriage. If any of these actions occurred, the court may deny parental rights to a same sex partner, even if they participated in the life of the child and raised them as their own. We can look to a recent Florida case for an example of this determination. In 2017, the case of Castellat v. Pereira was brought before the District Court of Appeals for the 3rd Circuit. The same sex couple employed assisted reproductive technology to have a child. Pereira was the biological mother of the child born, only her name appeared on the birth certificate, but the child was given Castellat’s last name. The couple raised the child together and shared parental responsibilities. 4 years after the child’s birth the parties separated, Pereira took the child, and formally changed the child’s last name to her own. Wishing to continue contact with the child, Castellat petitioned the court. Castellat never formally adopted the child, was not the biological parent, nor was the child born during an intact marriage. Therefore, the court determined Castellat had no legal rights to the child. The court noted that “although the child’s life may well have been enhanced by having a relationship and receiving financial benefits from [Castellat]” the court is hesitant to intrude upon a legal parent’s Constitutional right to privacy.
A parent’s constitutional right to raise their children in the methods they choose is strictly protected and is the basis for denying same sex parental claims. Therefore, individuals without the protection of biology, marriage, or adoption must take action to protect their rights to children they have raised and call their own.
Same sex parental right cases are becoming more frequent in the courts. However, in many cases no relief may be provided to a same sex parent who maintains no legal ties to a child. Therefore, if you are a same sex parent it is imperative to determine your legal rights to your child by contacting an experienced family law attorney today.
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