Custody Issues in Same-Sex Divorce

Same-sex couples across the nation can finally celebrate now that the United States Supreme Court ruled the U.S. Constitution protects the right of all Americans to marry, regardless of sexual orientation. This victory follows years of litigation in Florida over an amendment added to the state constitution that banned marriage between same-sex couples, which culminated in a court ruling in January 2015 that determined it violated the U.S. Constitution. However, this new legal framework has a lot of catching up to do to give same-sex couples the rights enjoyed by heterosexual couples. A recent article by Fox News Tampa highlights one of the issues facing same-sex couples – listing the names of both parents on birth certificates. A same-sex couple was only permitted to list the name of the woman who gave birth to the child and was informed by the hospital that the state did not provide for the listing of non-biological parents on the document. A spokesperson from the Florida Department of Health, the agency in charge of regulations related to the recording of parentage, said it was working on the issue but gave no indication when the regulation would be changed. This incident reflects just one of many issues facing same-sex couples and parental rights, and this grey area of the law will be further challenged when same-sex couples get divorced. A review of custody-related issues under Florida law could be useful to same-sex couples that are current parents or those considering having children, and will be discussed below.

Who is a Parent?

Since Florida law does not permit a biological mother to put her same-sex spouse’s name on the birth certificate, the child has only one documented parent at this point. Practically speaking, it will be more difficult to do things like make medical decisions or pick the child up from school absent a document listing the spouse as a parent. Further, the non-biological parent may not be recognized as a legal parent, and Florida typically will not grant custody or visitation rights to a non-parent, with limited exceptions for extended families members and guardians, which would completely shut out a person who may have experienced a parental relationship with the child for years. Additionally, a document drafted by the biological parent, indicating they wish their spouse to be the child’s legal guardian if the biological parent should die, is unlikely to be honored if her relatives object. By contrast, a man is presumed to be the father if his wife gives birth and must take steps to publicly disclaim the child if he does not believe he is the biological father.


The best option available to the non-biological parent to ensure they have legally recognized parental rights is to petition for a step-parent adoption or joint parent adoption once the child is born. Step-parent adoption is available for male couples that use a surrogate mother and the sperm of one of the men, couples where one spouse previously adopted a child as a single parent, and couples where one spouse is a biological parent of a child from a previous relationship and the other biological parent already gave up parental rights or is willing to do so. A step-parent adoption is preferable to a second-parent adoption, the method previously used by same-sex couples to adopt, because the process for second-parent adoption is longer, more costly, and includes requirements for home studies, fingerprinting and background checks. Also, courts can put limits on the extent of parental rights in second-parent adoption that do not occur in step-parent or joint adoption situations. Once the adoption process is complete the names of both parents will appear on state-issued birth certificates and both spouses will have full and equal rights to parent the child.

Obviously, there are still many areas where same-sex spouses are not accorded the same benefits as their heterosexual counterparts, and many of these issues will likely have to be litigated in court before laws and regulations change, but until that happens, ensuring you have rights to your child may require additional steps to erase any doubt about who is entitled to claim they are the child’s parent. If you are going through a divorce and have concerns about your parental rights, it is vital to retain the services of an experienced family law attorney who can assist you with retaining your relationship with your child. The attorneys at Stok Kon + Braverman provide assistance to clients in Fort Lauderdale and Boynton Beach areas and are prepared to help you with your family law issues today.