Parents in Same-Sex Relationships May Lose Visitation Rights After Split

In the recent Florida 2nd District Court of Appeal decision of Russell v. Pasik, two women entered into a relationship that started before same-sex marriages were declared a constitutional right. However, after those opinions came out they never went forward and actually got married.

The two of them each used donor sperm supplied by the same anonymous donor. They each had two children from this donor. They raised these four children as a family unit for almost 12 years and then one of the women decided to end the relationship. That parent then decided to refuse visitation or time-sharing to the other parent. That rejected parent petitioned for time-sharing with the children, claiming to be the children’s de facto or psychological parent. The trial court denied a motion to dismiss stating that the unusual facts of the relationship sufficiently set forth a cause of action. A petition for certiorari was filed.

The Florida Second District Court of Appeals reversed the trial judge’s decision and held that a non-biological parent, regardless of the intent of the parties and relationship with the children, does not have standing to seek visitation rights with children with who they are not biologically connected to or have not adopted. The Court cited the 2000 Belair v. Drew Supreme Court of Florida decision, which held that parents had a constitutional right of privacy in their decision to limit grandparent’s visitation with their child and declared a grandparent visitation statute unconstitutional. The Russell court declared that this was a policy matter that needed to be addressed by the Florida legislature and not the judiciary. Of interest, the opinion declines to comment on whether a valid same-sex marriage when the children at issue were born would have been sufficient to grant standing to seek visitation. Given children born during a marriage are presumed to be of the marriage, it will be interesting to see how the courts address the age-old case law that says a parent will not be allowed to bastardize their child. Also, it does not appear that anyone argued on behalf of the children that they also would seem to have a constitutional right, to have contact and a relationship with their de facto parent. I wonder what would have happened had a Guardian ad litem been appointed to protect the interests of these children who were being used in this tug-of-war. They are also being deprived of contact with their siblings!! I’m sure we will eventually see this factual scenario work its way through the courts. But for now, same-sex couples who are planning on having children should always do so after being married so that the rights of both parents can be adequately addressed by the courts.

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