Second Parent Adoption – Florida Reinstates Same Sex Adoption

Same sex mothers with toddler. Second parent adoption.

In the Matter of the Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA 2014), the Fifth District Court of Appeal reversed an order vacating a second parent adoption.

Trial Court Undoes Same Sex Adoption

The trial court terminated the parent-child relationship between a mom (G.P.), and the parties’ child and voiding the adoption.  Because two unmarried women had filed an uncontested petition for adoption, the court held the circuit court never had subject matter jurisdiction to grant the adoption.

The Fifth DCA Resinstates 2d Parent Adoption

The Fifth District disagreed and reinstated the adoption and G.P.’s parental relationship with the child. The circuit court had subject matter jurisdiction. The biological mom (C.P.), couldn’t now challenge the adoption she helped procure.

The appellate court stated:

“it would be unconscionable to allow C.P. to invoke the jurisdiction of the court for the sole purpose of creating a parent-child relationship between G.P. and D.P.P. and then to allow her to destroy that same relationship because her relationship with G.P. has ended.” 

Adoption by Extended Family Member

Second Parent Adoption mother with baby.

In D.P.P., a same-sex woman in a committed relationship with her partner raised, then legally adopted, the partner’s biological child. The facts were different in I.B. v. Adoption of Z.E.S., 238 So. 3d 847 (Fla. 4th DCA 2018).

In IB, a child’s grandmother petitioned under the Florida Adoption Act to terminate her daughter’s parental rights and adopt the child. The child’s grandfather consented to the adoption, as did the biological mom.

The child’s biological dad joined in the grandmother’s petition to terminate the mother’s parental rights and to adopt the child. But he didn’t consent to termination of his own parental rights.

Dad and the grandmother acted for 2 years as the child’s de facto co-parents. The child thrived under this arrangement. Had the adoption petition succeeded, they’d have been the child’s two legal parents.

Rejecting this attempt, the Fourth District held the dad – already a legal parent – couldn’t be a joint petitioner in an adoption of his own child, to avoid termination of his own parental rights and to add a second parent: the maternal grandmother.

Distinguishing D.P.P., the court in I.B. held the moms in D.P.P. were in a “committed” relationship at the time of the adoption. The child was born into a two-parent home where the parents were in a familial relationship with each other and the child. The I.B. court reasoned: “Sanctioning the adoption in D.P.P. was essentially sanctioning adoption by a stepparent because at the time, same-sex marriage was illegal in Florida.” The Legislature has clearly stated its preference that an adoption result in “adoptive parents” raising the adoptee as if the child were “born to such adoptive parents in lawful wedlock.” § 63.032(2). Id.

Temporary Custody by Extended Family Member

Mother and Father with son with Down Syndrome. Second Parent Adoption

In 2020, the Florida Legislature passed a bill the Governor approved that expanded, effective July 1, 2020, the definition of an “extended family member” who may seek temporary custody of a child.

Now an “extended family member” includes a “fictive kin” — someone “unrelated by birth, marriage, or adoption who has an emotionally significant relationship, which possesses the characteristics of a family relationship, to a child.” That means someone who has no relationship to the child by birth, marriage, or adoption will be able to petition for temporary or concurrent custody. 

Read more about the amended law, parents’ privacy rights, “psychological parents” and the best interest of children in the blog Custody of Children by Extended Family Member.

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