LGBT Family FAQ
(Last Updated: 1/12/2017)
Will I have to lie about my sexual orientation in order to adopt? Can same-sex couples legally adopt in Florida?
For more than 33 years it was illegal for LGBT people to adopt children in Florida. That statute, passed in the midst of Anita Bryant’s infamous anti-gay crusade, was ruled unconstitutional and unenforceable by a state appeals court in September 2010. Since then, countless LGBT people and same-sex couples have built their families through adoption and foster care.
There are several ways to adopt in Florida. The first is single adoption, in which an individual adopts a child through a private agency or the Florida Department of Children and Families (DCF). The second is joint adoption, whereby a married couple can legally adopt a child together due to the statewide legalization of same-sex marriage marriage. For situations in which one spouse already legally has a child (biological or adoptive), the other spouse can can protect their rights through a step-parent adoption. Lastly, an unmarried couple or unmarried co-parents can complete a second-parent adoption.
If my partner and I are now legally married, is it necessary to adopt the children we have raised or will raise together?
Even with marriage equality, married non-biological parents may not be fully protected as parents if they have not adopted. Florida law presumes that the spouse of a person who gives birth is a parent, but this is just a presumption and may not fully protect your rights, depending on your situation. Even if you were married to the birth parent at the time your child was born, it is recommended that you get an adoption or court order recognizing your parentage to make sure you are protected. Also, not all states fully protect non-biological parents, even if they are married, so unless you have an adoption or court order you may not be protected if you travel or move to another state. If you married after your children were born, you must adopt to protect your rights.
What is the difference between a step-parent adoption and a second parent adoption?
A step-parent adoption is an option for a legal parent’s spouse. A second parent adoption is an option for the unmarried partner or co-parent of a legal parent. However, the second parent adoption process is more costly in that it requires a home study and is generally a more complex process. A step-parent adoption is more expedient, requires only one hearing, does not require a home study, and is often less expensive because of the reduced timeline. This is one of the reasons why marriage equality is so important for our families. Marriage equality makes the step-parent adoption process an option for LGBT families, and allows LGBT parents to legally protect and parent their children through a more streamlined process.
Does an accurate birth certificate afford me parental rights?
A birth certificate alone doesn’t make you a parent. It is only evidence that you are a parent. Florida law presumes that the spouse of a person who gives birth is a parent, but this is just a presumption and may not fully protect your rights, depending on your situation. Even if you receive an accurate birth certificate with both parents listed, it is highly recommended that you complete a second- or step-parent adoption or get a court order recognizing that you are a parent. A birth certificate can be used to prove parentage at your child’s school, a doctor’s office, and other local places, but only an adoption court order will 100% ensure your legal rights as a nonbiological parent in Florida and all 50 states for all purposes.
My wife is giving birth to our child, to whom I do not share a genetic connection. Will I be listed on our baby’s birth certificate at the hospital?
Yes! The Bureau of Vital Statistics in Florida will now issue a birth certificate that lists both same-sex parents at the time of their baby’s birth. Same-sex couples won the right to access every single benefit and protection of marriage, including the right of a spouse to be listed on their child's birth certificate.
In partnership with the National Center for Lesbian Rights, our local attorneys, and two plaintiff couples, Equality Florida filed a lawsuit on August 13th, 2015 to demand that the Bureau treat married same-sex couples as they would married different-sex couples. And in January of 2017, the State signed a settlement agreement with us agreeing to issue accurate birth certiifcates to ALL married same-sex couples from here forward, and to issue amended certificates to anyone who was married at the time of their baby's birth.
You can find instructions to request a corrected birth certificate here. To learn more about the lawsuit filed by the National Center for Lesbian Rights on behalf of Equality Florida and two plaintiff couples, click here.
Do I have parental rights over my spouse's children from a previous relationship? What if my partner and I are unmarried?
If you have not legally adopted your spouse’s children from a previous marriage, you need to adopt to become a legally recognized parent in Florida. If you are unmarried, you can complete a second-parent adoption. If there is another legal parent, they have to consent to your adoption unless they are unfit or there are other specific circumstances. If you are unmarried, you can complete a second-parent adoption. Until you complete a second- or step-parent adoption, you may not have any right to custody, hospital visitation, or a duty to support the child if the partnership dissolves.
How can I prepare to adopt my child before they are born?
You cannot complete an adoption before a child is born. However, you can start preparing to file your adoption papers before birth.
If you are growing your family through surrogacy, there are specific legal requirements you have to follow. You should consult with an attorney experienced in surrogacy.
If you are using ovum sharing to conceive, where you are using eggs from one of you and the other will carry your child, you should both be legally recognized as parents regardless of whether you are married. But, it is still important to get a court order recognizing this to make sure you will be recognized in every state.
How do I ensure that a known sperm donor's parental rights are terminated? What about for an unknown sperm donor?
According to Florida law, an egg, sperm, or embryo donor has no parental rights to the child when using assisted reproductive technology (unless all parties are entering into a pre-planned adoption agreement that allows for parental rights to be retained). This is regardless of whether the donor is known or unknown and whether you conceived at home or with a doctor. It is very helpful to have a sperm donor agreement that all of you sign before conception. It is highly recommended that you consult with a lawyer prior to conceiving. It is also highly recommended that your attorney complete a formal termination of parental rights after your child is born.
Is termination of donor's parental rights different depending on how the child is conceived (at-home or in-vitro)?
Florida law states that the donor of any egg, sperm, or embryo will relinquish all maternal or paternal rights and obligations to the child so long as the insemination is done with assistive reproductive technology. The insemination is not required by the statute to occur in a clinical setting for the donor’s parental rights to be waived.
What are my rights as a transgender parent? Are my rights different depending on whether I am a biological or non-biological parent, or if I am trying to adopt? Are there any laws barring transgender persons from adopting?
If you are a biological or adoptive parent, your gender identity should not, under Florida law, affect your legal ability to have custody of your child. Florida courts are only allowed to determine custody based on factors that directly affect the best interests of the child. If you are not a biological or adoptive parent of your child, you may need to take steps to protect your relationship with your child, similar to non-biological parents in same-sex relationships. Please see the questions above for more information.
Florida law does not prohibit transgender people from adopting children. Although the interview and screening process for adoption can be extremely probing, it should not in any way legally prevent transgender parents from adopting their children solely due to their gender identity. If a judge rules against your adoption and you suspect that it is because of your gender identity, you should talk to an attorney right away about possibly appealing the decision.
If you are denied an adoption due to your sexual orientation, gender identity, or gender expression, please contact us here.
My partner and I would like to have more biological children and, because of financial concerns, prefer to wait to legally adopt all of our kids until we have our last child. Is there an expedited process if we adopt all of our children at once? What are our parental rights until then?
Depending on your attorney’s policies, the process may be quicker and less expensive to adopt more than one child at the same time. However, it is highly recommended to complete a legal adoption of any and all children you already have as soon as possible. It is not advisable to remain in legal limbo as a family until you are done having children. If finances are a concern and adoptions seem cost-prohibitive, please contact us. We will do our best to provide you with legal resources that can help you make an informed decision.
Can I foster or adopt children through an agency outside of the county in which I live?
Usually, potential adoptive parents file for adoption in the county where they and the child live. However, it is still possible to complete the process if the child lives in another county or state. You can also hire an attorney who lives and works in a different county than you, and your adoption can be filed outside of the county in which you live.
Can I complete an adoption without hiring an attorney?
Yes, it is possible to obtain an adoption petition form and complete an adoption without hiring an attorney. However, legal counsel is almost always a favorable option to none. An extensive screening process is performed and a home study process is required of every potential adoptive parent by the state of Florida. This home study process is waived if the adoptive parent is completing a step-parent adoption of their spouse’s legal child.
About how long does an adoption process take from beginning to end?
The average length of time for an adoption varies depending on which type of adoption you are completing. However, step-parent adoptions are known to be the most expedient adoptions, which is one reason why the ability for same-sex couples to marry is so significant for LGBT families.
How do I transition from being a foster parent to an adoptive parent? How do I adopt a child who is in the foster system?
Not every child in the foster system is eligible for adoption. Sometimes, if a safe return home is not possible for a child, they will become eligible. When this happens, your first step is getting in touch with your agency representative and expressing your interest in adopting. Because children in the foster system have often been subject to significant trauma, potential foster parents, and those interested in adopting out of foster care must take a parenting class in their area (usually referred to as MAPP or PRIDE). There is also a subsequent home study process, during which social workers assess your home and personality to determine whether the adoption will be a good fit.
What actions can I take if I have been denied services by an agency for discriminatory reasons?
For resources and questions about life after legal marriage, click here.