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A New Frontier: Navigating LGBT Adoption in the Sunshine State

Posted on 29 January 2013

The historical journey to legalized gay adoption in the Sunshine State has been a winding one. Florida Statute 63.042 allows any minor or adult to be adopted by married or unmarried adults, including anyone capable of “serving as an effective parent.” But the law also states that, “(3) No person eligible to adopt under this statute may adopt if that person is a homosexual.”

Critics of this unfair discrepancy were loud and relentless in point it out. State law didn’t prohibit gays from being foster parents, but it prevented them from adopting their own foster kids. The courts refused to intervene, until the landmark case known as In re: Gill, 45 So. 3rd 79 (Fla. App. 2010), when the 3rd District Appellate Court affirmed a lower court ruling in Miami that declared Statute 63.042(3) unconstitutional, and granting adoption of foster children to their gay foster parent.

In its decision, the court ruled there was no rational relationship between the legal ban and the best interests of Florida’s children.

“Under Florida law, homosexual persons are allowed to serve as foster parents or guardians, but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons—even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children,” the appellate court found.

The ruling’s effect was to overturn a long-standing legal ban on gay adoption in the Sunshine State, and open the doors for qualified gay persons to adopt.

Jeff Kasky, Esq. is a Florida adoption lawyer, and the Vice President of One World Adoption Services, Inc., a Florida-licensed not-for-profit child placing agency. He is also the co-author of “99 Things You Wish You Knew Before Choosing Adoption.”

Give us some background into the progression from 1977, when the state legislature prohibited gay adoption, and why Florida resisted all legislative and judicial attempts to repeal the law.

In my personal opinion, the ban on so-called ‘gay adoption’ was based on religious conservatism. This pre-dates my adulthood, but look back at the 1970s Anita Bryant era and see how homosexuals were treated. The legislature would take advantage of any possible way they could to deny civil rights to that group, and they believed they were justified for religious reasons.

What are the methods/ways for LGBT couples to adopt in Florida?

LGBT couples CANNOT adopt in the State of Florida, unless they are married (which they can’t legally under state laws), or unless they undertake a procedure called “second parent adoption,” in which a non-married partner (who doesn’t have to be LGBT) is also legally recognized as a parent to the child.

The concept of second parent adoption is perfectly legal and legitimate, but is more readily recognized in more liberal areas. It gets more “controversial” as you move north up the state, if you know what I mean.

The methods/ways for LGBT persons to adopt in Florida are no different than anyone else. There are private agencies, the Florida Department of Children and Families (DCF), foster-to-adopt via DCF or its community-based partners and private attorneys.

How do private adoptions work?

With a private adoption, you find a particular child. The prospective birth mother and child could be found through an attorney, or through a service. With a private adoption, the adoptive parents are generally responsible for the biological mother’s medical expenses and legal fees. You don’t—and can’t legally—pay for the adoption itself, but other expenses could include paying for the birth mother’s living expenses.

 

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