South Florida Attorney and Counselor at Law
15 2013 Jul

The Fall of Florida’s Gay Adoption Ban

Both Florida’s laws of intestacy and most estate planning documents address the implications surrounding the existence of adopted children in connection with inheritance of a decedent’s (a deceased person) estate. As mentioned in prior posts, same sex couples in particular must engage in complex estate planning because the laws do not treat them equally. This article, submitted as a guest post by  Adam Cordover, Esq. of The Law Firm of Adam B. Cordover, P.A., a family law attorney in Tampa, Florida, discusses the evolution of the law governing adoption by same sex couples. Thank you Adam for your contribution.

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In 1977, the Florida Legislature passed a law stating that “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” That law still is still on the books as section 63.042(3) of the Florida Statutes.

However, like other laws that are still on the books, section 63.042(3) is no longer enforced because it has been struck down as unconstitutional. Below is a summary of the case, In re the Adoption of XXG and NRG, 45 So. 3d 79 (Fla. 3d DCA 2010), which overturned the United States’ last categorical ban on gay adoption:

In 2004, two young children were placed in the foster care of “F.G.” after the children were found to have been neglected by their biological parents. At the time of placement, the 4 month old child had ring worm and an untreated ear infection. His 4 year old brother also had ring worm, arrived wearing a dirty adult size t-shirt and shoes that were several sizes two small, and did not speak.

In 2006, the natural parents’ rights were terminated. In the meantime, the children had recovered from their health and developmental issues and were thriving in F.G.’s care. Shortly after the termination of the natural parents’ rights, F.G. applied to the Department of Children and Family (the “Department”) for adoption of the children. Though the Department found that F.G. was a fit parent and it would be in the children’s best interests for F.G. to adopt them, the Department denied the application as contrary to Florida’s ban on adoption by homosexual persons.

In 2007, F.G. filed a petition for adoption with the court. After much deliberation, the trial court in 2008 found that the ban unnecessarily infringed on F.G.’s right to equal protection under Article I, Section 2 of the Florida Constitution. The trial court elaborated that the absolute prohibition on adoption by homosexual individuals was simply irrational while all other petitioners, including those with criminal histories or histories of substance abuse, were considered on a case-by-case basis.

The Department appealed the trial court ruling, and in 2010 Florida’s Third District Court of Appeal published its opinion. The District Court agreed that the ban was unconstitutional, and commented that “[e]xcept for homosexual persons, there is no automatic, categorical exclusion of anyone from consideration for adoption.” The District Court further noted that even those who have been found to have abused, abandoned, or neglected a child were not were not automatically disqualified from adopting another child.

The opinion also pointed out that no law prevented gay or lesbian individuals to be appointed as legal guardians or foster parents of children, and the ban inexplicably just applied to adoptions. Moreover, the District Court rejected the Department’s assertion that the ban had the rational basis of providing prospective adoptive children better role models and more stability in a household with a husband and a wife, as Florida has permitted single adults to adopt since at least 1943.

Social science, the District Court concluded, also could not be used as a rational basis for upholding the ban. At the trial level, world-renowned psychologists testified and provided the findings of studies that spanned over a decade on differences between homosexual and heterosexual parenting and households. The studies, which have been accepted and adopted by organizations including the American Psychological Association, American Psychiatric Association, and American Pediatric Association, found that the sexual orientation of the parents made no difference in parenting or adjustment of children.

Shortly after the Third District Court published its opinion, then-Governor Charlie Crist announced that his administration would not seek to appeal the case to Florida’s Supreme Court. Consequently, as no other district court has ruled to the contrary, the Third District opinion became binding on all Florida trial courts, and gay and lesbian individuals have exercised their right to adopt.

Author:

Barry E. Haimo, Esq.

Haimo Law

Email: barry@haimolaw.com

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