Welcome to the Florida Family Lawyer Blog

The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing , child support , mediation , domestic violence , parenting coordination , parenting rights of same-sex couples , and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

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Maternal Rights of Same-Sex Partners – T.M.H. v. D.M.T, A Florida Case of “First Impression”

The Fifth District Court of Appeals in Florida – the appeals court covering the north/central part of the State, recently decided T.M.H. v. D.M.T, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011), a case dealing with the parental rights of lesbian partners. In this case the partners decided to have a child together – one partner, TMH’s egg was fertilized and implanted by in-vitro fertilization in DMT. The child was born in 2004; the parties lived together for approximately 2 ½ years and raised their child together, and separated in 2006, but continued co-parenting for another 1 ½ years. The parents’ relationship deteriorated, and DMT moved out of the country and cut off TMH’s contact with the child. The Court described the case as a case of “first impression”, i.e. an issue that had not been decided yet by Florida’s appellate courts, and ruled that both parents – both the birth mother and biological mother, had constitutionally protected rights as parents.

The key issue in the TMH case involved the rights of the “biological” mother — TMH, who was not the birth mother, because the embryo was implanted in DMT who gave birth to the child. DMT, through her attorney, argued that a Florida Statute (F.S. 742.14) that provides for an egg or sperm donor losing or waiving their maternal or paternal rights, applied to TMH and meant that as an egg “donor” she had waived and lost her rights as a parent. The Court decided that TMH was not a “donor” — that it was not a situation where TMH had given away her ova so that another mother or couple could have and raise a child. The Court found that the intention of TMH and DMT, their agreement, was to have and raise a child together, and that that is what they had done for many years before they had a falling out.

The Court went on to make several significant rulings in the case, as part of its decision. First, that the right to procreate and parent your child is a fundamental, constitutionally protected right. The court applied this right to decide the case, thus holding that lesbian parents’ rights are constitutionally protected, and specifically stated that applying F.S. 742.14 to deny TMH’s maternal rights would violate her constitutional rights, including her right to equal protection under the law. There are some technical constitutional law issues that make up the constitutional law ruling, but this the bottom line of the Court’s decision.

One thing to note, and the reason I mention above the District the case came from, is that a decision of a District Court of Appeals is only “binding” on the circuit courts in the counties covered by that District. The circuit courts are the “trial” courts that hear your family law case. When you go before a family court judge for a hearing or trial – the judge you’ll see is a Circuit Court Judge. The website for the Florida Courts list the counties covered by each District Court of Appeal. So for example, in a case in the future, the Fourth District Court of Appeal covering Broward and Palm Beach Counties could decide the issue addressed in TMH v DMT differently than the Fifth DCA did. The Fifth DCA in the TMC decision, “certified” the issue in the case, i.e. sent the case up to the Florida Supreme Court, as a matter of great public importance. The parties are currently filing briefs before the Florida Supreme Court. This post will be continued in Part II.