By: Beth T. Vogelsang, Esquire

In the divorce of a lesbian couple, can a family court judge deny parental rights to one partner of a child born during the marriage? According to a recent Oklahoma family court decision, the “non-gestational” partner has no parental rights if she failed to adopt the parties’ child, notwithstanding that the child was born during the parties’ marriage, and the parties co-parented the child since his birth.

With the stroke of a pen, the family court judge ruled that the non-gestational partner’s name should be removed from the child’s birth certificate, and the parent should be treated as a stranger to the child she helped raise for the first two years of his life.

Oklahoma Divorce Proceeding

The Oklahoma family involved in the divorce case was a same-sex couple who married in 2019. The couple decided to have a child together using one of the partner’s eggs, fertilized by a sperm donor, and implanted in the gestational partner’s womb. The in vitro fertilization resulted in the birth of a baby boy.

Both partners’ names were listed on the baby’s birth certificate. Both partners lived together and co-parented their baby boy for the next two years until they separated and filed for divorce.

A child custody dispute arose during the divorce proceedings when the partners were not able to agree on a holiday time-sharing schedule for the child. As a result, the case went from a dispute about holidays to a court decision that found the non-gestational parent had no parental rights, denied her any custody or visitation with the child, and ordered her name to be removed from the birth certificate.

Rehearing Granted

The non-gestational partner filed a motion to reconsider, asking the judge to re-examine her original decision. Finding in favor of the non-gestational partner, the Oklahoma judge reversed her previous order which found that the non-gestational partner would have to adopt her baby boy to have legal standing as a mother. The judge’s recent order ultimately restored the non-gestational partner to the status of “legal mother” alongside her partner.

Same-Sex Marriage

Just seven years ago, the U.S. Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of the right to marry. Like the decision to marry, choices concerning family relationships, procreation, and childrearing are all protected by the Constitution.

On May 31, 2022, the President of the United States issued a proclamation concerning Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) Pride Month, acknowledging the ongoing fight for justice, inclusion, and equality LGBTQI+ people face. This proclamation reaffirmed the belief that LGBTQI+ rights are human rights and recommitted to delivering protections, safety, and equality to LGBTQI+ families.

Florida Divorce and Gay Rights

The State of Florida legally recognized same-sex marriage on January 6, 2015. As a result, same-sex couples have the same rights as heterosexual couples with regard to divorce, parenting, and time-sharing. In addition, same-sex couples can file joint tax returns, adopt children together, and enter into prenuptial agreements before marriage.

Nevertheless, it is undeniable that same-sex couples confront unique challenges in divorce. For example, if a same-sex couple lived together before they were able to legally marry in 2015, and the couple accumulated assets together, under Florida law, the family law court is under no obligation to consider anything that happened prior to the couple’s legal marriage.

Also, the length of the couple’s marriage for purposes of alimony is calculated from the date of their actual marriage, even if they were in a long-term committed relationship prior to marrying. That said, as with any divorcing couple, same-sex partners can overcome these challenges by proceeding on an uncontested basis and resolving their divorce matter with a written marital settlement agreement.

While the law in Florida is clear that a child born or conceived during a heterosexual marriage is a legitimate child of the mother and the “man to who she is married,” it is less clear whether this principle applies to same-sex marriages.

At least one Florida appellate court has applied the presumption of legitimacy in a same-sex marriage case. That court also held that the non-biological spouse may enforce her parental rights with respect to children born prior to the date of the parties’ marriage where the parties married after the children were born, based upon Section 742.091, Florida Statutes, which provides that if the mother of any child born out of wedlock and the “reputed father” subsequently marry, the child is deemed to be the child of the husband and wife. McGovern v. Clark, 298 So. 3d 1244 (Fla. 5th DCA 2020). Since this is the only reported Florida appellate decision on the issue, it is an area of law that should be closely watched.