Wednesday, January 04, 2012 Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother
As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.
By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together. After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.
Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone. Eventually the egg-donor mom tracked them down in Queensland, Australia.
The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent. Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.
Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:
Same-sex partners do not meet the definition of commissioning couple. There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon.
The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption. The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong." The genetic mother appealed.
On appeal, the 5th District Court of Appeals in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.
In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights. After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:
Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away. Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.
The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:
[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.
In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question: whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.
The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:
Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother]. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.
Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here: http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf
Tuesday, December 13, 2011 Downloadable Brochure: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts
 Vaughn-Martel Law has released a brief downloadable brochure entitled: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts.
Generally, Adoption refers to the legal process of creating a legal parent-child relationship where previously one did not exist. Co-Parent Adoption (also called "Second-Parent Adoptions and similar to Step-Parent Adoption) refers to the joint adoption of a child by two parents, one of whom is already biologically or legally related to the child. The brochure briefly answers some basic questions like, "Who Needs Co-Parent Adoption", "Is a Home Study Required", and "Do We Need to Terminate Our Sperm or Egg Donor's Rights".
The Co-Parent Adoption process has been used by same-sex parents throughout Massachusetts to establish a legal and binding parent-child relationship in a non-biological parent. Even married couples who are both listed as presumptive parents on a birth certificate in Massachusetts should file for adoption to ensure that their legal parentage will be recognized in states that are hostile to same-sex relationships.
To determine whether a Co-Parent Adoption is right for you and your family, download our our free informational brochure, and contact one of the reproductive law attorneys at Vaughn-Martel Law. We're always happy to answer any questions you might have.
Tuesday, October 11, 2011 A Defendant Facing Jail Time for Failure to Pay Child Support has No Right to Counsel, Supreme Court Says
In June of 2011, the Supreme Court issued a 5-4 opinion that changed the rules of contempt proceedings for failing to pay child support. In Turner v. Rogers, the court decided that the Due Process Clause of the 14th Amendment does not require states to provide a lawyer to defendants facing incarceration for failure to pay child support. In the Turner case, the court found that Mr. Turner, a South Carolina man behind in his child support payments, was not entitled to a lawyer; however, the court did find that his incarceration violated the Due Process Clause.
The Court cites three main considerations as to why provision of a lawyer is not required in child support proceedings. First, the determination of whether a defendant is able to pay the child support can be answered prior to providing a defendant with counsel. The court also considers that the person opposing the defendant is often not the government, but rather the other parent who is also unrepresented by counsel. Providing a lawyer to one parent but not the other parent has the potential to make the child support proceedings less fair. Lastly, there are adequate safeguards available to protect the defendant’s interests. Thorough financial assessment procedures, financial documentation forms, and notice to the defendant sufficiently protect him or her in answering the critical question of whether the defendant is able to pay.
In the Turner case, the court found that Due Process had been violated because, even though the state was not obligated to provide the defendant with a lawyer, the lower court did not provide any of the above-mentioned safeguards to make sure that the trial court had sufficiently examined the defendant’s ability to pay.
The Court’s decision essentially affirms the continued right of judges to throw a party in jail for failure to comply with an order to pay child support. At the same time, the Court is mandating that sufficient safeguards and practices be in place in order to comport with Due Process.
It is important to note the Supreme Court’s decision does have limitations. The court’s ruling may not apply to situations in which child support payment is owed to the state, where the government is likely to be represented by counsel. It also may not apply in an ‘unusually complex case’ where a defendant can only be competently represented if he has access to a lawyer.
Whether you are seeking an order of child support, or have found yourself in the position of being behind in child support payments, it is critically important to have competent representation. To determine if and how Turner may affect you, feel free to call us or send us an email, and as always, keep checking the blog for updates on pertinent legal news! Friday, September 16, 2011 Texas Court Ruling a Reminder to Same-Sex Parents: Plan for the Worst
Recent news out of a Texas family court has many people discussing how far this country still needs to go in recognizing the rights of same-sex couples and same-sex parents, and has Massachusetts lawyers reminding themselves that their clients are better off safe than sorry.
As reported by the Advocate, a heterosexual couple in the state of Texas divorced after having three children. The mother was awarded custody of the children. The father, William Flowers, eventually re-married Jim Evans, a man, in Connecticut, and they traveled back to Texas to live.
After the father’s re-marriage, he attempted to obtain custody of his children in a Texas family court. Texas bans the recognition of same-sex relationships, including Flowers’s Connecticut marriage to Evans. The Judge, on top of denying the father custody, ordered that the father could never leave his children with any man who isn’t part of the family without Mother’s permission. The Judge eventually changed the wording to read “any person not related to the children”, but this superficial change did nothing to assuage the GBLT media, GBLT activist groups, and lawyers all over the country. It especially did nothing to ease the pain and indignity felt by Flowers, Evans, and their family.
This story out of Texas is a harsh warning to gay and lesbian families in states, including Massachusetts, that recognize same-sex marriage and same-sex parenting rights. It is also a reminder to attorneys of the critical importance of making sure clients put in place all possible safeguards in order to protect their families.
Same-sex families in Massachusetts need to take every legal step available to protect their marriage and their children, so that in the event that they, their spouse, their property, or a loved one ends up within the jurisdiction of a hostile state like Texas, their relationships and property will be protected.
Important legal protections available to same-sex couples (and opposite-sex couples) include preparing a comprehensive estate plan, with property and healthcare directives, preparing domestic partnership or property ownership agreements, preparing co-parenting agreements, and petitioning for a decree of adoption of their spouse or partner’s children, among others.
The current non-uniformity of patchwork state laws concerning the recognition of same-sex relationships and families makes it all the more important for gay and lesbian families to start a relationship with a GLBTQ family practitioner and take full advantage of the legal protections offered to them. While it is infuriating and unjust that same-sex couples must endure the cost and complexity of additional planning to protect their families, it is better to be safe than sorry. |