Another Florida Co-Parent Loss

Appeals court rules says constitutional rights of birth mother trump any ex-partner claims

In a decision weighted with serious negative implications, the Florida 1st District Court of Appeal affirmed the dismissal of a lawsuit by Mary L. Wakeman seeking to enforce visitation rights under a co-parenting agreement she had made with her former partner, Den Dixon, prior to the birth of their two children. Unless the state Constitution is amended, the situation Wakeman and other gay and lesbian co-parents find themselves in likely cannot be corrected even by legislative reform.

The January 24 ruling is yet another heartbreaker in the on-going struggle to get the Florida courts to accept the reality of non-traditional families.

This one is even more serious than some others, however, because the unsigned opinion by a three-judge panel premises its ruling on the state Constitution’s right of privacy, holding that a birth parent has a constitutional right to prevail against child visitation claims by a “non-parent.” The court treated Wakeman as a non-parent or “third party,” even though she and her former partner had jointly planned to have the child through donor insemination and had signed a co-parenting agreement naming her as a mother to the two children who were later born.

In similar cases from other states where courts have refused to order visitation, they have based their decisions on state statutes that could be amended if the state Legislatures wanted to do so. In this case, the appeals court cited the state high court’s broad reading of the state’s constitutional privacy right with respect to the rights of biological parents.

“The Florida Supreme Court has held that, under the privacy provision in the Florida Constitution, a third party, even a grandparent, cannot be granted by statute the right to visitation with minor children, because, absent evidence of a demonstrable harm to the child, such a grant unconstitutionally interferes with a natural parent’s privacy right to rear his or her child,” the appeals court wrote, citing Beagle v. Beagle, a 1996 decision from the high court.

The court of appeals noted that the trial court had found that Wakeman and a guardian ad litem appointed to represent the children’s interest had “made a compelling argument that it is in the best interests of the children to enforce the co-parenting agreements,” but had nonetheless ruled that it was bound to reject the claim for visitation, even in the face of a written parenting agreement.

According to the appeals court, the “best interest of the child” standard that usually governs custody and visitation disputes between parents was not relevant here, because Wakeman is not a legal parent and the state Constitution protects Dixon’s right to exclude any third party from contact with her children.

Judge William A. Van Nortwick, Jr., wrote a special concurring opinion, pointing out how the existing Florida law works to the detriment of children being raised in non-traditional families.

“I am concerned,” wrote the judge, “that when these households dissolve, Florida law ignores the needs of those children. I write to urge the Florida Legislature to address the needs of the children born into or raised in these non-traditional households when a break-up occurs.”

Van Nortwick cited census data showing the significant numbers of American households with children headed by same-sex couples, and the widespread use of “assisted reproduction” allowing lesbian couples to have children.

“Florida law does not protect the interests of the child produced by assisted reproduction where the child is born into a non-traditional family. It is undisputed in the research that the dissolution of a household with children can have adverse effects on those children,” wrote Van Nortwick. “Even though one might lament the growth of the number of non-traditional households with children, lamentations do not address the reality facing the child.” he commented.

While acknowledging the constitutional basis for the court’s decision, Van Nortwick wrote, “The Supreme Court has also recognized, however, that ‘if circumstances present themselves that question the safety of the minor child, any concerned party may seek the initiation of proceedings to protect the well-being of the child.’ When a non-traditional household breaks up, it should not require a dependency proceeding to protect the well-being of the child.”

Will Van Nortwick’s pragmatic arguments be wasted on the Republican-controlled Florida Legislature and Republican Governor Jeb Bush? Both have obstinately defended the state’s ban on gay people adopting children, having defended it successfully before the U.S. Court of Appeals for the 11th Circuit based on absurd arguments about role-modeling and child development belied by the state’s own policy of placing foster children with gay parents. The “Legislature is busy “defending marriage” against gay people. What is the likelihood it will take the time to defend the rights of children to maintain contact with their de facto parents in the event a co-parent relationship breaks down and their well-being is threatened? And, what latitude does the state Supreme Court precedent give it to do so?

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