Florida Fifth DCA Approves Second-Parent Adoptions

In a long-awaited opinion, the Fifth District Court of Appeal (Daytona) last week held that second-parent adoptions, the adoption of a child by a gay parent’s partner, is within the jurisdiction of the courts and cannot later be challenged by the parents. The case–In re Adoption of D.P.P.–involves an unmarried lesbian couple who conceived with an anonymous donor, changed one partner’s name so that the child and couple would have the same name, and then filed a petition for adoption by the partner who had not given birth. The petition was granted and, after years of raising the child together, the couple separated and the birth mother sought to set aside the adoption. The circuit court agreed, and the case went on appeal.

The history of favorable Florida gay adoption cases began in 2010 with In re X.X.G., in which the Third DCA (Miami) held that Florida’s categorical ban on “homosexual” individuals adopting children was an unconstitutional violation of equal protection. The State of Florida chose not to appeal that decision, and it has stood as the law in Florida ever since. The next related case, T.M.H. v. D.M.T., in 2013, involved a lesbian couple who had used assisted reproductive technology to have a child. That couple also raised the child for years and then separated, with one partner attempting to permanently end the relationship between the child and the other partner. Again the trial court granted the request and the Florida Supreme Court reversed, holding that when a couple intentionally has a child, raises that child, and holds themselves out as the parents of that child, it violates Due Process and Equal Protection to then declare that one of those parents had no parental rights at all. The Court wrote “It is not the biological connection, per se, but rather the assumption of parental responsibilities which is of constitutional significance.”

Four years after In re X.X.G., the idea of legal gay adoption is so settled that X.X.G., the case that made it so, is not even mentioned in the opinion concerning second-parent adoptions. And, since there was no state action denying or attacking the adoption and no statute categorically forbidding it, the issue of Due Process and Equal Protection need not come into play either. Gay adoption is here in Florida. We are now moving into the next generation of questions: how does gay adoption work in practice?

In re Adoption of D.P.P. answers that question in two very important ways: it holds that second-parent adoptions are within the general jurisdiction of the circuit courts over child custody issues; and it holds that a parent who participates in a second-parent adoption is legally estopped (precluded) from coming back later and challenging it. Gay petitioners for adoption have the same access to courts and finality of judgments as anyone else.

Both D.M.T. and D.P.P. also begin to answer what happens when the litigation narrative changes from one of an oppressed population seeking rights vis a vis the state, and instead that population begins to invoke these new rights in their dealing with one another. Both cases suggest the legal frameworks are solid enough that no individual litigant is going to be able to roll them back. But both cases also show that gay people have fought for and won equal access to a system that is deeply flawed. The next generation of questions will be how the presence of gay families in the system has transformed that system, hopefully for the better.

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