Florida Marital Presumption, Is it Enough to Protect My Parental Rights?
Due to the Florida marital presumption when a married same sex couple has a child with the assistance of third party reproductive technology (i.e. IVF, artificial insemination), absent gestational surrogacy which is governed by a different legal framework, both members of the married couple are presumed to be the legal parents of the child, just like a child born into the marriage of a heterosexual couple.
The Florida laws regarding the marital presumption using third party assisted reproduction is as follows:
742.11 Presumed status of child conceived by means of artificial or in vitro insemination or donated eggs or preembryos.—
(1) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination.
(2) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by means of donated eggs or preembryos shall be irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos
Therefore, for example, if a same sex female couple have a child with the assistance of artificial insemination, both woman are presumed to be the legal parents of the child and should both appear on the Florida birth certificate.
But because a birth certificate is only a presumption of parentage, it is still the recommended course of action that same sex married couples perform a step parent adoption after the child is born to best protect the legal rights of both parents. Due to the fact that same sex marriage is not recognized around the world, and in the event the laws in the United States ever change regarding same sex marriage, a court order confirming the step parent adoption of both parents would be a stronger protection for both parents instead of just proceeding with the Florida birth certificate. The step parent adoption is especially important if the parents plan to live elsewhere where same sex marriage is not afforded the same recognition as it is in the United States. Another reason a step parent adoption is a recommended course of action is the marital presumption statute cited above refers to a "husband" and "wife", so a court ordered step parent adoption is just an additional "belts and suspenders", protection to ensure the parental rights of both parents.
What is a Florida Step Parent Adoption?
The process in which a married non-biological spouse obtains full parental rights to the child (and the biological parent retains all parental rights) is through the process of Step Parent Adoption. It is important to consult with a Florida lawyer familiar with this step parent adoption process to ensure that all parties are adequately protected and both same sex partners obtain full parental rights to the child born into the marriage.
The process for a Step Parent Adoption, which can take approximately 1 month from filing the adoption petition, involves filing an adoption petition with the appropriate consents, attending a final step parent adoption hearing and obtaining a step parent judgment, and ultimately placing both parents on the child’s birth certificate (if both parents are not already listed on the birth certificate).
It is important for any couples considering building a family to consult with a Florida reproductive attorney to ensure that all parental rights are protected which involves a case by case analysis of the facts leading to the child's conception.