Gay Divorce Law: Birth Certificate Issues for Same-Sex Parents

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Lawsuit claims Florida might be breaking the law by refusing to acknowledge married same-sex couples as parents on birth certificates When the U.S. Supreme Court ruled in Obergefell v. Hodges that the Constitution required that same-sex couples be allowed to marry no matter where they live, it also required all states to extend the identical benefits and obligations opposite-sex spouses enjoy from marrying to same-sex spouses. Since gay marriage is in its infancy in Florida, there are many gray areas, especially as it relates to same-sex divorce.

One issue of great concern involves how the Florida Department of Health and the Bureau of Vital Statistics process the birth certificates for children who are born into same-sex relationships. When a married woman gives birth, Florida Statutes Section 382.013(2)(a) states, “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”

Both parents become legal parents if the child was born into the marriage and both parties signed the birth certificate. If both parties adopted the child then both parties have parental rights. When both parties have parental rights, the divorce proceedings will be the same as a divorce proceeding for a heterosexual couple.

In August 2014, U.S. District Judge Robert L. Hinkle issued a decision striking down Florida’s marriage ban and ordering state officials, including Florida’s Surgeon General, who oversees the Department of Health and the Bureau, to treat married same-sex couples and their children equally in all respects. However, same-sex couples are finding the agencies are still refusing to allow hospitals to list both samesex parents on their baby’s birth certificate despite repeated requests.

Currently, Vital Statistics is interpreting Section 382.013(2)(a) quite literally: if there is no husband, then only one parent will be placed on the birth certificate. This interpretation ignores relevant case law.

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In D.M.T. v. T.M.H, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011) the Florida Supreme Court recognized that a child could have two legal mothers. The case involved a lesbian couple that decided to have a child by one partner (T.M.H.) providing fertilized ova to the other (D.M.T.), who carried and gave birth to the child. After the couple separated, D.M.T contested her former partner’s parental rights. The court ruled that both parents – both the birth mother and biological mother, had constitutionally protected rights as parents.

On August 13, 2015, three married same-sex couples filed a federal lawsuit in Tallahassee, Chin v. Armstrong, challenging Florida’s refusal to issue them accurate birth certificates listing both spouses as parents of their children. Equality Florida, the largest organization representing lesbian, gay, bisexual and transgender Floridians, is also a plaintiff in the case.

Without being listed on the birth certificate, spouses have no legal claim to the children. If the spouse who is listed on the birth certificate dies, the surviving spouse may lose custody. It also prevents parents from obtaining health care, making medical decisions, signing up for day care, and enrolling in government programs and benefits.

In the event of a divorce, the family court considers what is in the best interest of the child. The judge may deny visitation rights by anyone who is not the legal parent of the child. If one partner is listed as the child’s biological parent on the birth certificate, and the other partner is not or has not formally adopted the child, the biological parent will receive custody of the child.

Until Chin v. Armstrong is resolved, same-sex couples should consult with an experienced divorce attorney to review their legal options. Doreen Yaffa

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