Evolving Litigation Concerning Same-Sex Couples or Nontraditional Households in the State of Florida (Continued…)

Finally, the Birth Mother contends that a choice needs to be made as to which one of the women should have exclusive rights to the minor child. The court concluded that both parents can contribute love and affection to an individual and that this love transcends the relationship between to consenting adults; there was nothing in the record to demonstrate in any way whatsoever that both women did not love the minor child equally.

The number of children in the State of Florida in same-sex or nontraditional households is steadily increasing. Florida law is presently ignoring the needs of these children in these households when relations dissolve or there is a break-up. In the year 2000 the United States Census enumerated 105.5 million households in the United States of which the majority 52 percent were maintained by married couples. Tavia Simmons and Martin O’ Connell, married-couple and unmarried-partner households: 2000 1, Census 2000 Special Reports (U.S. Census Bur. Feb.2003). Census 2000 also noted “a reflection of changing lifestyles , ” id., with the “enumeration of 5.5 million couples who were of the unmarried-partner households, the partners were of the opposite sex (4.9 million households, or 89 percent); but in 11 perfect of the unmarried-partner households the partners were of the same sex. ID.

As represented by the case before us, many unmarried-partner households include minor children. Census 2000 determined that 43.1 percent of opposite sex unmarried-partner households included children under the age of 18 years, while 22.3 percent of male partner households and 34.3 percent of female partner households included minor children. Id. At 9. In Florida, the percentages of such partner households that included minor children are only slightly lower than the national percentages. Id.

In addition, assisted reproduction is widely used in this country and has provided the opportunity, among other things, for unmarried women to have children without a relationship with a male. As commentators have noted, assistant reproduction also creates the possibility of the fragmentation of parentage. Professor John Lawrence Hill observes that ‘We now live in an era where a child may have as many as five different ‘parents’. These include a sperm donor, an egg donor, a surrogate or gestational host, and two no biologically related individuals who intend to raise the child. “John Lawrence Hill, What Does It Mean To Be a “Parent?” The claims of Biology as the Basis for Parental Rights, 66 N.Y.Y.L.Rev.353,355 (1991). Despite the constitutional protection of both procreation and child rearing, see Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 2054, 147 L. Ed.2d 49 (2000) (child rearing), as this casa evidences, Florida law does not protect the interests of the child produced by assisted reproduction where the child is born into a non-traditional family. It is undisputed in the research that the dissolution of a household with children can have adverse effects on those children. A person develops a parent-child relationship with the child through day to day interaction, companionship, and emotional caring for the child. This relationship fulfills the child’s physical necessities of daily living. Once this bond forms, breaking up the relationship, psychologists believe, will have serious and harmful effects on the child’s emotional development.

Suzette M. Haynie, Biological Parents v. Third Parties: Whose Right to Child Custody is Constitutionally Protected?. 20 Ga L.Rev. 705,745 n. 3 (1986). Florida courts have recognized the proposition that child between the age of six months and three years establishes an attachment, bonding, to a primary caretaker; that this bonding is essential to the wholesome emotional development of the child; that to deprive a child of the primary caretaker during this period has a destructive effect on the child’s intellectual, physical and psycho-social development…

Agudo v. Agudo. 411 So.2d 249, 250 (Fla.3d DCA 1982). The dissolution of a non-traditional household can have damaging consequences on a child which are identical to the consequences of a dissolution of a traditional marriage-based relationships. See generally, Kyle V. Velte, towards Constitutional Recognition of the Lesbian-Parented Family, 26 N.Y.U. Rev. L. & Soc. Change 245 (2000/2001). Yet the child in the non-traditional family in Florida is not protected either by statutory rights or by the ability of courts to secure the best interests of the child when the household dissolves. Even though one might lament the growth of the number of traditional households with children, lamentations do not address the reality facing the child. In the recent case of Lathan V. Schwerdtfeger, 802 NW 2d 66 (Supreme Court of Nebraska, August 26,2011). The Nebraska Supreme court held that the doctrine of in loco parents does apply to same-sex partners and couples and that even though one of the partners is the biological parent and the parents were not married that the minor child has the right to be raised by two loving and caring parents. In Latham, supra, the court explained the common law doctrine of in loco parentis and how it would be applied to same-sex partners seeking custody and visitation as follows: “A person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parents.

In conclusion, with the ruling made in T.M.H. V. D.M.T, 2011 W.L. 6437247 (Fla 5^th DCA Dec 2011), another Circuit Court Judge has taken a step toward protecting the equal rights and protection of rights to same-sex partners and non-traditional households. I am presently handling a case in which a same-sex couple had recently broken up and one of the partners is seeking time-sharing to their child. Many of the arguments made in T.M.H., supra, can be made to expand the rights of the same-sex partner to see her child with who, she had established a relationship. T.M.MH., supra, provides a precedent for same-sex partners to be equal parents to raise a child conceived by artificial means when one contributes an ova and the other carries the baby to term.

This process is extremely costly and expensive and even though it is a first step in securing equal protection under the law for same-sex partners it does not take into consideration the various other possible relationships in which a non-biological same-sex partner should be entitled to rights to a child.

Based up on some of the antiquated positions of the legislative of many states, including Florida, laws are passed which preclude Equal Protection. It is necessary for lawyers and judges alike to see whether or not those laws violate the constitutional.

The case of Latham, supra, supra, has very similar facts to the T.M.H. case in the State of Florida. The partners involved in the Latham, supra, also involved two women in a same-sex relationship from 1985-2006. The partners planned to have a family together and to the fertility clinic together and ultimately had a baby together both emotionally and financially. Ultimately, the two women separated and eventually the Biological Mother restricted her partners contact. The Supreme Court of Nebraska determined that the partners each had equal rights and that the doctrine of in loco parentis applied. That the relationship of the parties was not a degrading factor; it was observed that “a biological parentis rights do not extend to erasing a relationship between her partner and her child she voluntarily created and actively fostered simply because after the parents separated she regretted having done so.

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