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Same Sex Couples and Child Custody: Whether Your Name Is on the Birth Certificate Is More Important Than Your Genetic Relationship to the Child


LGBT families have existed much longer than the law has acknowledged them.  Now that same sex couples can legally marry in Florida, the family courts must treat the co-parenting rights of same sex couples who divorce the same way that they treat the co-parenting rights of opposite sex couples.  Meanwhile, advances in assisted reproductive technology and DNA paternity testing have raised questions of family law that family courts had never previously had to decide, whether the parents are heterosexual or LGBT.  In some ways, the precedents set by the old rules influence child custody decisions for the new generation of parents, but some questions about parenting plans for children of LGBT couples are completely uncharted territory.  If you are a mother in the midst of a custody dispute with your ex-wife, a South Florida child custody lawyer can help you.

Two Mothers at War Over Child Custody: Landmark Cases

  • Susan Russell and Elizabeth Pasik raised four children together, all conceived with donor sperm, with each mother giving birth to two children. All the children were born before same sex marriage became legal; during Susan and Elizabeth’s relationship, it became legal for LGBT people to adopt children.  Neither woman legally adopted the children her partner had borne, but all the children had both last names.  When they separated, Elizabeth tried to get a parenting plan that would allow her to share physical custody of Susan’s children.  The court ruled that, while it would be in the children’s best interest to continue their relationship with Elizabeth, who had helped raise them from birth, it could not award her parenting time because she had no genetic relationship to the children and did not legally adopt them.
  • In a case referenced in the Russell v. Pasik decision, a lesbian couple had a child through IVF. The egg was extracted from one mother, and the embryo was implanted in the other mother’s uterus.  The court ruled that they were both biological mothers of the child and awarded parenting time to both women.
  • In the case of a child born in 2009, the court awarded full custody to the child’s biological mother (she carried the pregnancy, and the child was conceived from her egg) after she and her partner separated in 2013. The court ruled that, while it would be in the child’s best interest to continue a relationship with both mothers, the partner should have legally adopted the child or gone out of state to marry the birth mother if she wanted the court to recognize her as a parent.

How to Make the Law Recognize You as a Parent

  • Get both your names on the birth certificate as soon as the child is born. Florida birth certificates allow for a “second parent” who can be any gender.
  • Legally adopt the child, whether your relationship with the birth mother began before or after the child was born.
  • Legally marry your partner. If the birth mother is married at the time of the child’s birth, the mother’s spouse is automatically listed on the birth certificate as a second parent.

Let Us Help You Today

For better or worse, what the documents says carries more weight in court than the efforts you have put into raising children with your partner.  Contact the Boca Raton child custody lawyers at Schwartz | White for help today.


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