Thanks to the Brenner v. Scott decision from the Florida Supreme Court and the Obergefell v. Hodges 2015 ruling in the U.S. Supreme Court, same-sex marriages are expressly legal in Florida and recognized everywhere in the United States. However, while LGBTQ+ married couples have the same rights under the law as heterosexual spouses, some unique procedural and practical issues can arise during a same-sex divorce. This is especially true pertaining to timesharing with children.
Resolving matters of child custody following a same-sex divorce in Miramar can be a deceptively complex process, even if both parties to the divorce want the same arrangement. Guidance from a seasoned same-sex divorce attorney could be vital to ensuring that your wishes are respected and enforced by the court overseeing your separation from your spouse.
In Florida, same-sex couples are equivalent to opposite-sex couples in terms of the rights and privileges afforded to both parties as spouses. Accordingly, same-sex couples must go through all the same legal procedures as opposite-sex spouses to formally end their marriage. This includes the formation of a parenting plan to establish which individual will retain parental responsibility for any children and how physical timesharing rights and obligations will be shared.
It is important to note that Florida law will almost never grant physical timesharing rights, or even visitation, to anyone who is not a child’s legal parent following a divorce in Miramar. For opposite-sex couples, this issue generally does not pose much of a problem since a mother’s husband will automatically be named on her newborn child’s birth certificate as the child’s father unless one or both spouses expressly object to it. Thanks to Pavan v. Smith (2017), a woman married to another woman who gives birth to a child biologically has the same right to be listed on the child’s birth certificate as their lawful parent.
Things get challenging if one spouse in a same-sex couple is legally identified as a child’s biological or adoptive parent but the other is not. As mentioned above, family courts will typically not grant them any timesharing rights regardless of how much of a role they played in the child’s life or even the wishes of both divorcing parties.
Because of this, it is absolutely vital for married same-sex couples in Miramar to ensure both spouses are named as an adopted child’s parents or that a non-biological parent is listed on the birth certificate. Doing this well in advance of any possible issues is the only surefire way to avoid legal problems with custody further down the road should the union end.
If you have questions about how you or your same-sex spouse’s custody rights may be impacted during divorce, contacting skilled legal counsel should be your top priority. Despite LGBTQ+ married couples having equal rights to opposite-sex marriages under federal and Florida law, there are still ways where the application of those laws does not map well to the intricacies of a same-sex union.
The team at McKinnon Legal is available to help with child custody following a same-sex divorce in Miramar. Reach out today to schedule a consultation to learn more.
