Florida Gay Adoption

Gay adoption in Florida used to be 100% illegal. But then in 2010 the Florida Court of Appeals ruled that the law banning gay people from adopting was unconstitutional. Then in January 2015, same-sex marriage was legalized. Before marriage equality, same-sex couples in Florida looking to both become the parents of their child had to do something called a second parent adoption. However, now that gay marriage is legal in Florida, couples can instead take advantage of the cheaper and more streamlined stepparent adoption process.

Because current legal information about Florida gay adoption can be hard to find,  I’d like to go over the basics on this page. If you are a same-sex couple with specific questions about your situation or would like help with your adoption, please contact me by email at gideon@galperlaw.com or by phone at (407) 476-6047 or by using the contact page. My practice is based in Orlando, but I help couples throughout the state of Florida.

Adoption by a Single Gay Person or by a Same-Sex Couple Together

A single gay person can now adopt a child in Florida. That used to not be the case: the law expressly disallowed gay people from adopting at all.

There’s two ways to do this: adopt through Florida Department of Children and Families (DCF) or through a private agency. Adopting through a private agency lets you find a match with specific criteria important to you, but it’s a lot more expensive. Adopting through DCF (also called agency adoption) is a lot cheaper: Florida will reimburse your adoption expenses (including attorney’s fees) up to a certain amount, plus provide many other benefits to you.

Adopting through DCF means going through classes, several interviews, questionnaires, and a home visit to make sure you are a good parent. After a home study, DCF will place the child in your home during a trial period. Once  this trial period has finished, they’ll sign off on the adoption. During that entire process, you work with your adoption lawyer to prepare documents for an adoption hearing in front of a judge.

DCF no longer asks about the applicant’s sexual orientation–it’s not even on the form. But keep in mind a couple of things:

  • DCF is still going to favor married couples over single parents, gay or not.
  • Prior to January 2015, DCF would not approve a joint adoption by a same-sex couple–now they do.

Private adoption is less paperwork and hassle, but you’ll generally have to pay the expenses of the birth mother. And you still have to do a home study, since that’s required by Florida law. Because there are no reimbursements, private adoptions are a lot more expensive, ranging from $10,000 to $30,000.

If a same-sex couple adopts from DCF as a couple, then at the end of the process both adopting parents will be recognized as the child’s parents through the same adoption proceeding.

Adopting the Child of Your Spouse: Stepparent Adoption

A stepparent adoption allows one person to adopt the child of his or her spouse. The most common kind of same-sex couple needing a stepparent adoption are two women where one woman is the biological parent and the other woman is the biological parent’s wife. Through the stepparent adoption, the current non-legal parent will adopt the child and become a full legal parent, yet the current legal parent keeps his or her own parental rights.

Before gay marriage in Florida, stepparent adoptions could not be done by same-sex couples, as second parent adoptions are limited to married couples. Instead, couples would do something called a second parent adoption, which was generally more expensive, more paperwork, and more risky. But with the availability of stepparent adoptions for married same-sex couples, the stepparent adoption will usually be the better choice.

Who Can Get a Stepparent Adoption?

My most common clients getting a stepparent adoption (formerly, second parent adoption) in Florida are lesbian couples where one partner is the biological parent. Other people that will also want to do a stepparent adoption include:

  • Gay male couples where a surrogate mother has given birth to a child using one of the men’s sperm.
  • Couples where one partner has previously adopted a child on his or her own.
  • Couples where one partner has a biological child with a previous relationship, and the other biological parent has or wants to give up his or her parental rights.
Unless you use an anonymous sperm donor, it is generally difficult (but doable) to get a stepparent adoption without consent from the third party biological parent. And you can’t do it if there are already two legal parents (for example, an opposite-sex ex-spouse) without having the other legal parent terminate his parental rights. Can’t have three parents in Florida.

What a Stepparent Adoption Does for Gay Couples in Florida

Some married same-sex couples tell me that they assume that taking care of their spouse’s or partner’s child gives them legal rights to that child. This is a mistake. The only sure way to secure these legal rights is through a stepparent adoption.

In general, same-sex couples in Florida  should consider stepparent adoption for three reasons:

  1. To protect the current legal (often biological) parent.
  2. To protect the rights of the adopting parent.
  3. To protect the rights of the child.

Without a stepparent adoption, the current legal parent can’t rely on the current non-legal parent’s legal duty to provide for their child. This is especially important if the partners break up: a stepparent adoption can make the second parent help provide for the child even after the divorce or breakup.

Of course, this works both ways. The current non-legal parent will also feel more secure in his or her legal right to care for the child. If the couple breaks up, this second parent will still be able to have a relationship with the child.

Finally, the child herself is guaranteed the legal support of two parents, regardless of what happens to the couple’s relationship.

Can the biological mother put her wife on the birth certificate?

Currently, Florida is not allowing a biological mother to put her wife’s name on the child’s birth certificate. That means the biological mother’s wife has no parental rights when their child is born even when she is married to the biological mother. Note: this is different than opposite-sex married couples. A man married to a woman is presumed to be the biological father when the woman gives birth.

It is strongly recommended that lesbian married couples do a stepparent adoption after the child’s birth to ensure that the biological parent’s wife has full equal parental rights to the child. Perhaps one day this will change in the future so that same-sex couples are treated more like opposite-sex couples, but in the meantime, getting an adoption best protects the non-biological parent’s rights.

Without a stepparent adoption, the non-biological parent in a same-sex family might have no legal rights to the child. None. Marriage alone does not guarentee equal rights to the child when one spouse is the biological parent and the other is not. It’s also not enough for the non-biological parent to be set up as the guardian of the child.

The only sure way for the non-biological parent to obtain legal rights to the child in Florida is through a stepparent adoption or to jointly adopt together at the same time..

A stepparent adoption lets the non-biological parent make important decisions and share in custody for the child even if the couple separates or if one parent dies. Or it could be much simpler: it will let the non-biological parent do things like pick up their kid from school or make medical decisions when the biological parent can’t be reached.

What will go on the child’s birth certificate?

After the stepparent adoption is complete, both of the names of the same-sex couple.. That means both moms or both dads. Once the stepparent adoption is complete, or if the couple adopts jointly at the same time, a new birth certificate is issued by Florida showing the names of the new legal parents. The names will be listed as “Parent 1″ and “Parent 2.”

What’s the stepparent adoption process for gay couples in Florida?

First we file the adoption petition and related paperwork.

Then, if there are parental rights that we need to terminate, we’ll work to obtain consent from the parent whose rights are being terminated. If instead you used an anonymous sperm donor, then we may not have to terminate anyone’s rights. With a known donor, some couples still want these third parties to be involved in the child’s life, which is completely fine. However, these third parties must still terminate all legal rights they have to the child.

Once all that’s filed, I complete a putative father registry search, which is a legally required check in every adoption to see if anyone else is claiming to be the father. Then, we schedule an adoption hearing with the judge assigned to your case. Finally, I prepare the judgment and the paperwork to change the birth certificate.

How long does it take?

Generally around two months once the adoption petition is filed.

How much does a stepparent adoption for gay couples cost in Florida

The cost of a stepparent adoption in Florida mostly includes the legal fee, the filing fee charged by the court and a few other small costs. Please contact me for more specifics.

Understand the financial risk of not doing an adoption. If the biological parent dies, then the surviving non-biological parent could lose legal parent rights. The same could happen if the partners separate. It will cost a lot of money for the non-biological parent to prove in court that he or she has rights to the child.

What you Need to do next

If you and your partner have no children currently and want to adopt from a private agency, let me know and I’ll refer you to an LGBT-friendly agency that can help you.

If one of you already has a child, and you want both you and your partner to be the legal parents of that child, contact me to get started with a stepparent. I am based in Orlando, but help couples throughout Florida.

Orlando Gay and Lesbian Adoption Information

Gay adoption in Orlando can be done through either an adoption agency or as a private adoption. Please also review my answers to many questions about gay adoption in Florida, including stepparent adoption, First, let's look at Orlando gay adoption set up... Continue reading

About Gideon Alper

Gideon Alper
Gideon is an attorney that focuses on evictions, debt collection defense, same-sex couples, and adoption in Orlando, Florida.