Florida Court of Appeal Rules That Both Mothers Have Rights

January 19, 2012 by

Florida’s Fifth District Court of Appeal, located in Daytona Beach, FL, recently ruled on a landmark case involving the minor child of two lesbian mothers. The ruling from the Court can be found here. This case was the first case of its kind to be argued in any Court of Appeal in Florida and resulted in the Court certifying a question of great public importance to the Florida Supreme Court.

First, it is important to give a bit of the facts of this landmark case for the rights of same-sex parents with children. The couple, two women, had been in a committed relationship with one another from 1995 until 2006. Sometime in 2003, the couple decided that they wanted to have a child when one of the women, for ease of reading we’ll call her “Jane” discovered that she was infertile, the couple decided that they would take the ova from the other partner, again, for the sake of reading, we’ll name her “Jill”, and implant a later fertilized ova into Jane. Jane then carried the child to term and was born on January 4, 2004 as a healthy girl. Jane and Jill had always stated to others that they intended to raise the child as a family and to not make any significance of whom the birth mother was and who the biological mother was. The relationship between the parties began to sour in May of 2006 and Jane and Jill separated but, Jill began to make child support payments to Jane for their daughter but these payments ended when Jane and Jill decided to share time with their daughter therefore ending any statutory requirement for child-support to continue, which is the case in most situations but, not always. Then the relationship between Jane and Jill continued to sour and eventually Jane left with the minor child on December 22, 2007 and essentially ended Jill’s visitation with their daughter. Eventually Jill relocated to Australia and then filed a lawsuit attempting to establish her rights to her daughter.

When the lower trial court heard Jill’s Motion to Establish Parental Rights the lower court found that it was restricted by Florida law to recognize Jill as a mother of their child as Jane, being the birth mother, was conclusively established as the mother of the child. The lower court ruled against Jill and for Jane but in its ruling stated that it felt upset by the constraints established by Florida law and the Judge stated to Jill that, “If you appeal this, I hope I’m wrong.” On appeal, Jill argued that the Florida Statute and law that so constrained the lower court Judge’s decision were in fact unconstitutional. After much wrangling with the facts presented in the case, ultimately the majority opinion from the Fifth Circuit Court of Appeal ruled that the lower court’s ruling denying Jill’s Motion to Establish Parental Rights was unconstitutional and without support of case law and judicial interpretation. The Fifth District Court of Appeal remanded, essentially returned, the case down to the lower court to address the issues presented in Jill’s Motion to Establish Parental Rights and the majority opinion concluded when it certified, asked, the Florida Supreme Court a question of great public importance and stated, “Does the application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?”

There has been no word as to whether the Florida Supreme Court will answer this question certified to it by the Fifth District Court of Appeal but we will keep all of those interested informed going forward. Regardless of one’s feelings on the issue of same-sex couples, one cannot avoid being compelled by the facts of this case to see that in reality the party effected most is the minor child who is being deprived of a relationship with someone that they more than likely established a connection to.

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