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Same Sex Custody Issue

Same sex marriage is now the law of the land. However, there are still many unanswered questions as to the rights of each “parent” when a same sex marriage or relationship ends.

The 2nd District Court of Appeal recently decided the case of RUSSELL v. PASIK, 40 Fla. L. Weekly D2313a. This case involved a lesbian couple in which each partner gave birth to two children through artificial insemination (all of the child had the same biological Father). The family lived happily for several years, with each partner acting as a Mother to each of the four children (it is important to note that neither party legally adopted each other’s biological children). A few years later the couple ended their relationship. For two years following the termination of their relationship, the parties retained an active parental role in each of the children’s lives. However, a few years after the termination of their relationship, one party (Russell) refused the other (Pasik) visitation with her two biological children. Pasik then petitioned the court for timesharing with her two non-biological children. Russell filed a Motion to Dismiss the Petition alleging that Pasik did not have standing to seek visitation rights. The trial court found that “the unusal facts as set forth in the petition sufficiently set forth a cause of action” and denied Russell’s motion to dismiss. Russell appealed.

The appellate Court sided with Russell stating, “The facts alleged in the petition, while arguably unusual, irrefutably indicate that it was legally impossible for Pasik to establish standing to petition the trial court for timesharing with the children. And because a cause of action does not exist in the absence of standing, the trial court departed from the essential requirements of the law by not dismissing the petition for timesharing”

The 2nd DCA also noted that “Pasik still could have made the decision to adopt the children, a decision that would have arguably guaranteed her the rights of a parent that she now seeks”. As Weiner & Weiss, LLC, we handle all aspects of family law, including second parent adoptions for same sex couples.

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