Can Same Sex Partners Be Parents?

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Jeff NuckolsCan Same Sex Partners Be Parents?

By: Jeffrey R. Nuckols, Esq.

How may one protect one’s right to be a parent to a child born to a same sex couple? In Florida, it appears that parental rights might be difficult or impossible to assert for one partner of a same sex couple.

In this blog post, I will only discuss the rights of each woman in a female same sex couple. Two men might be a subject for a later post.

In 2006, the Florida Supreme Court declined to hear an appeal of the case Wakeman v. Dixon. Florida’s First District Court of Appeal had decided that case against one of the women in a same sex couple couple.

In Wakeman, the couple had lived together for a few years and decided to have children. One of the women, Dixon, became pregnant with her own ovum, and the two women executed documents evidencing intent that both would serve as parents to the child. Dixon later gave birth to a second child, and the women executed similar or identical documents regarding parenting. Sometime later the couple separated, and the birth mother, Dixon, relocated with both children to another city. Wakeman attempted to establish legal rights as a parent.

The Court held that Wakeman was not a parent of the children notwithstanding the parenting agreements that both women signed. Generally non-parents are not entitled to visitation rights.

In 2013, the Florida Supreme Court heard an appeal in the case D.M.T. v. T.M.H. Like Wakeman, this case also involved two women in a same sex relationship and a child born in that relationship. Here the Court held that both women possessed legally protected rights as parents. What is the difference between Wakeman and D.M.T.? In D.M.T., the women relied on assisted reproductive technology whereby one of the women’s ova were fertilized and implanted in the other woman so that one woman was a biological mother and the other woman was a birth mother.

For a more detailed analysis of Wakeman and D.M.T., see this article.

The bottom line? It would appear that female same sex partners in Florida who desire that both partners possess parental rights to a child born into their relationship will have the best chance of achieving that desire through assistive reproductive technology where one partner’s ovum is implanted in the other partner resulting in the birth of the child for which they both desire legal parental status.

Nothing in this article should be construed as legal advice or as forming an attorney-client relationship. If you have any questions about your particular situation please do not hesitate to contact Renee L. Dial at (321) 329-5449 ext. 1, or Jeffrey R. Nuckols at (321) 329-5449 ext. 2 for a free telephone consultation.

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