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Who Has Parental Rights in Florida?

By Saunders Law Group on May 23, 2014

In modern American society, different familial arrangements that are now the norm challenge traditional parental roles and accompanying rights and responsibilities. Non-married heterosexual couples and same-sex couples employing reproductive technology to start their family raise interesting questions regarding parental rights if the relationships fail and both persons seek custody of the child.  Indeed, these varying circumstances require courts to review laws to decide exactly who a parent is, and who, therefore, is entitled to enjoy child custody or visitation.  At the bedrock of custody and visitation determinations is the question - “what is in the best interest of the child?” Sometimes, however, statutory construction and contracts also play a role in those decisions.

Recently, actor Jason Patric made waves by winning an appeal in California regarding whether he could assert a custody claim for his biological child.  Patric had donated sperm to a woman with whom he had been in a relationship. After the child was born, Patric established himself as a firm presence in the child’s life, despite not being listed on the child’s birth certificate or having a written agreement with the woman regarding Patric’s intended role.  His relationship with the woman deteriorated, and the woman severed all contact between Patric and the child.  Patric then sued for parental rights.  Under California law, sperm donors have no parental rights unless the parties are married to the woman or there is a written agreement establishing parental rights before conception.  However, the California court focused on Patric’s commitment to the child and the child’s welfare in making their decision.

Florida Stat. Sec. 742.14 governs the parental rights of the donor of any egg, sperm, or preembryos.  The statute states that:  “The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.” In DMT v TMH, No. SC12-261 (Fla. 2013), the Florida Supreme Court found that a lesbian couple who had a child together - one woman served as the birth mother, one the biological mother as an egg donor - both had equal rights as parents.  The women had the child together when they were in an established relationship, and the child viewed each woman as a parent.  However, when the relationship deteriorated, the birth mother absconded with the child and deprived the biological mother of any contact with the child.  The court found that the women were a “commissioning couple” just as a heterosexual couple within the meaning of 742.14, and the biological mother had parenting rights. (A commissioning couple is defined as the “intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.”)

How would a Florida court rule in the case of Jason Patric? Based on the current state of law, absent a written agreement that Patric and his ex intended for Patric to play a role in the child’s life or other facts to establish they were a “commissioning couple,” it is very unlikely that Patric would have been granted an opportunity to assert parental rights.  However, as the tides change, so do the laws.  In California, legislation has been introduced to address the situation Patric found himself in.  Time will tell if Florida and other states follow suit, as non-traditional family situations - and potential conflicts - arise.

If you find yourself in a traditional or non-traditional custody conflict, consult with an attorney to determine what legal recourse you may have.

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