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Florida courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. Florida courts typically do not consider a parent’s gender identity or expression in making custody and visitation decisions. Courts in Florida have not granted custody or visitation rights to the non-biological parent of a child.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Florida courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Florida law states: “The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.
“The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care and any other responsibilities that the court finds unique to a particular family. The court shall order sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of the minor child.
“For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including but not limited to: (a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent; (b) The love, affection and other emotional ties existing between the parents and the child; (c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs; (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (e) The permanence, as a family unit, of the existing or proposed custodial home; (f) The moral fitness of the parents; (g) The mental and physical health of the parents; (h) The home, school and community record of the child; (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference; (j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent; (k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence; … (l) Evidence of domestic violence or child abuse; (m) Any other fact considered by the court to be relevant.”
One 2000 case, Jacoby v. Jacoby, was an appeal from a trial court decision that awarded primary residential custody of the two children of the marriage to the father. After the separation, the mother of the children moved in with her same-sex partner. Although the trial court did not rule specifically on the issue of whether the mother’s sexual orientation affected the outcome, the appellate court found: “the court’s remarks during the final hearing and in the final judgment demonstrate that it succumbed to the father’s attacks on the mother’s sexual orientation.” The appeals court re-affirmed that a court can only consider such conduct such as the mother’s sexual orientation when making custody and visitation determinations if it has a direct effect or impact upon the children. The appeals court reversed the trial court’s appointment of the father as primary residential parent and sent the case back to the trial court to make a new custody order.
In a 1997 case, Packard v. Packard, the trial court awarded primary residential custody to the father. The mother was a lesbian who had been living with a woman. At the time of the final hearing the father was living with his girlfriend. One of the reasons the trial court judge gave for awarding primary custody to the father was that he could provide a more traditional family environment. The judge, however, did not explain what he meant by this comment. As a result, the appeals court reversed the judgment with the instruction to the trial court that its “primary consideration should be on what conduct has had or is reasonably likely to have an adverse impact on the child.”
In a 1996 case, Ward v. Ward, the mother appealed an order that modified a final divorce judgment that transferred primary residential custody of the daughter to the father. The mother argued that the trial court focused solely on her sexual orientation in making its decision to change custody. The appellate court disagreed and found that the trial court found that the daughter had been exposed to conduct in the mother’s home that was inappropriate for a child of her age and that she was being harmed by that exposure. The appeals court affirmed the principle that “When the trier of fact concludes that the parent with primary residential custody is involved in a relationship, which has directly and adversely affected the child, regardless of the sexual orientation of that relationship, that relationship may be considered a substantial change in circumstances justifying a change in custody.”
In another 1996 case, Maradie v. Maradie, a trial court awarded the father primary residential custody of the child and took judicial notice that a “homosexual environment … can adversely affect a child.” The sole question before the appeals court was whether the trial court made an error in taking judicial notice of this. The appeals court reversed the custody order, stating: “In considering the parent’s moral fitness, however, the trial court should focus on whether the parent’s behavior has a direct impact on the welfare of the child.” The mere possibility of negative impact on the child is not enough. Moreover, the appeals court stated that at the very least, the mother should have been given notice and an opportunity to dispute the matters that the trial court judicially noted.
Custody and Visitation for Transgender Parents
Florida courts typically do not consider a parent’s gender identity or expression in making custody and visitation decisions.
Kanteras v. Kanteras was a highly publicized 2003 divorce and custody case involving a marriage between a post-operative female to male transsexual, Michael, who was married to biological female, Linda. Linda was aware of Michael’s gender identity when she married him. During the marriage they raised two children. During the divorce proceedings Linda asked the court to invalidate their marriage and to deny Michael any parental rights because he was transgender. The Tampa Circuit Court rejected this request and held that the two were legally married and that Michael was the legal father of the couple’s children. Furthermore, the court found Michael better suited to be the primary residential parent, and he was so designated. Linda appealed the case. The Florida Court of Appeals issued a decision in July 2004 voiding the marriage between Michael and Linda on the grounds that state law did not allow for a post-operative transsexual to marry as a member of the reassigned sex. The appeals court did not rule on the custody issue and said that the lower court should re-examine the issue in light of the voiding of the marriage. The Florida Supreme Court denied the petition for review. Television celebrity Dr. Phil invited the couple to his show and helped them work through a two-day mediation session. The couple was able to come to an agreement in which Michael will retain all of his parental rights and responsibilities and will continue to share legal custody with the children's mother.
Custody and Visitation for Same-Sex Co-Parents
Courts in Florida have not granted custody or visitation rights to the non-biological parent of a child.
The general feelings of the Florida courts is: “The government of this state, exerting its will through the court system, has no authority to compel visitation between a child and one who is neither a parent, grandparent nor great-grandparent,” and that “Florida law … does not allow a non-parent to seek custody or visitation.”
In a 2006 case, the Court of Appeals re-affirmed that a non-parent is not entitled under Florida law to seek visitation. In D.E. v. R.D.B., D.E., the same-sex co-parent, after being denied visitation, filed a dependency action to force visitation. This petition argued that M.D.B’s (the biological mother) denial of contact between the child and D.E. constituted the level of abuse needed to support a finding of dependency. The court rejected this petition.
In a 1999 case, Kazmierazak v. Query, the non-biological mother filed a petition for custody and visitation of her ex-partner’s biological child. The trial court dismissed the petition and the appellate court affirmed this decision. The appellate court noted that the non-biological mother did not seek custody or visitation pursuant to any law but instead argued that as a psychological parent (in loco parentis) she stood on equal footing with the biological mother. The court noted: “The concept of loco parentis has appeared only in the context of a marital relationship and, thus, is inapplicable to the present case. Without a status equivalent to the biological parent, the appellant, in the present case, lacks standing to seek custody or visitation of appellee’s biological child against her wishes.”
In a 1995 case, Music v. Rachford, two women, involved in a domestic partnership, had a child via artificial insemination. The non-biological mother helped raise the child for three years until the relationship ended and the biological mother denied visitation. The non-biological mother petitioned for visitation and parental rights based on a de facto parenthood status. The trial court dismissed the non-biological mother’s petition based on failure to state a claim, and the appellate court affirmed the decision.
Citations: FLA. ANN. STAT. §61.13 (2003)(2)(b); D.E. v. R.D.B., 929 So. 2d 1164 (Fla. Dist. Ct. App. 2006); Jacoby v. Jacoby, 763 So.2d 410 (Fla. Dist. Ct. App. 2000); Packard v. Packard, 697 So.2d 1292 (Fla. Dist. Ct. App. 1997); Ward v. Ward, 742 So. 2d 250 (Fla. Dist. Ct. App. 1996); Maradie v. Maradie, 680 So.2d 538 (Fla. Dist. Ct. App. 1996); Kantaras v. Kantaras, 884 So.2d 155 (Fla. Dist. Ct. App. 2004); Meeks v. Garner, 598 So. 2d 261 (Fla. Dist. Ct. App. 1992); Kazmierazak v. Query, 736 So.2d 106 (Fla. Dist. Ct. App. 1999); Music v. Rachford, 654 So.2d 1234 (Fla. Dist. Ct. App. 1995).
Updated: Fri, August 04, 2006 - 12:00:38
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