Florida Supreme Court Rules On Lesbian Custody Case

, Daily Business Review

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Florida Supreme Court

A lesbian mother who separated from her partner does not lose her parental rights to a child born during the relationship, a divided Florida Supreme Court ruled.

A lesbian mother who separated from her partner does not lose her parental rights to a child born during the relationship, a divided Florida Supreme Court ruled Thursday.

The 4-3 opinion strikes down the state law on assisted reproductive technology as unconstitutional and affirms a decision by the Fifth District Court of Appeal upholding parental rights for same-sex couples who jointly conceive a child.

The birth mother moved to Australia and cut access to the child born in 2004. The estranged partner whose fertilized egg was used in the pregnancy challenged the loss of rights and access in a state were same-sex marriage is barred.

Justices Barbara Pariente wrote for the majority in the closely watched dispute, which decided the case on federal equal protection and state privacy grounds. Chief Justice Ricky Polston and Justices R. Fred Lewis and Charles Canady dissented.

Pariente said the majority relied on "longstanding constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent, protected by Florida and U.S. Constitutions, when he demonstrates a commitment to raising the child."

The statute is unconstitutional as applied under due process clauses of the state and federal constitutions and the privacy provision of the Florida Constitution, Pariente said. The law also violates federal and state equal protection law "by denying same-sex couples the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples."

Pariente said that the mother identified in court records only as D.M.T., who took the child to Australia, is not being denied her right to parent. The decision only requires that T.M.H.'s right to parent be recognized.

"D.M.T.'s preference that she parent the child alone is sadly similar to the views of all too many parents, who after separating prefer to exclude the other parent from the child's life," she wrote.

The birth mother defended severing the biological mother's ties the circumstance by noting the biological mother signed a standard informed consent form at the clinic where the egg was donated.

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