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THE FOLLOWING OPINION IS NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION

G. P., Appellant, v. C. P., Appellee;Case No. 5D13-1766 COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 2014 Fla. App. LEXIS 7815, May 21, 2014, Filed

YOU MAY RECALL, THE BLOG I WROTE LAST YEAR ABOUT A SAME SEX COUPLE, WHERE ONE FEMALE CARRIED THE OTHER FEMALE’S FERTILIZED EGG AND GAVE BIRTH TO A CHILD WHO THEY RAISED AS THEIR CHILD FOR A NUMBER OF YEARS.  WHEN THEIR RELATIONSHIP ENDED, THE BIRTH MOTHER TRIED TO TERMINATE THE BIOLOGICAL MOTHER’S PARENTAL RIGHTS.  THE COURT SAIDNO.

LAST WEEK, THE 5TH DCA  UPHELD A FINAL ADOPTION JUDGMENT WHICH IS CLEARLY CONTRARY TO FLA. STAT. 63.042 (3) BUT WHICH WAS CHALLENGED ON THE BASIS OF SUBJECT MATTER JURISDICTION AND ESTOPPEL. WHILE I DO NOT DISAGREE WITH THE 5TH’s REASONING AND RESULT, I CANNOT HELP BUT OBSERVE THAT IT APPEARS THE HIGHER FLORIDA COURTS DO NOT SUPPORT FLA. STAT. 63.042(3)’s PROHIBITION AGAINST HOMOSEXUAL ADOPTIONS AND ARE INTENT ON FINDING WAYS TO ALLOW THESE ADOPTIONS TO REMAIN INTACT ONCE ENTERED!

IN THE D.P.P. CASE, THE CHILD WAS CONCEIVED BY C.P., VIA AN ANONAMOUS DONOR. C.P. THEN CONSENTED TO THE ADOPTION OF THE CHILD BY HER SAME SEX PARTNER, G.P.  THE ACTION WAS ENTITLED “A STEPPARENT ADOPTION” AND IT WAS GRANTED BY THE TRIAL COURT WITHOUT TERMINATING C.P.’s PARENTAL RIGHTS.  ALMOST A YEAR AFTER THE FINAL JUDGMENT OF ADOPTION WAS ENTERED THE RELATIONSHIP BETWEEN C.P. AND G.P. ENDED.  C.P. FILED AN ACTION TO VACATE THE JUDGMENT, ARGUING THE ORIGINAL COURT LACK SUBJECT MATTER JURISDICTION AND THE JUDGMENT WAS VOID BECAUSE G.P. DID NOT QUALIFY AS A PROPER PERSON TO ADOPT. THE  SECOND TRIAL COURT AGREED, STATING THAT G.P. WAS NOT A STEPPARENT OR AN UNMARRIED ADULT SEEKING TO ADOPT FOLLOWING THE TERMINATION OF C.P.’s PARENTAL RIGHTS AND THEREFORE THE JUDGMENT WAS VOID BECAUSE THE COURT LACKED JURISDICTION OVER THE MATTER.

ON APPEAL, THE 5TH DCA REVERSED THE SECOND TRIAL COURT’S VACATING AND LET THE ADOPTION STAND, ESSENTIALLY BECAUSE THE ISSUE ON APPEAL WAS JURISDICTION, NOT ERROR.  I WANT TO BE CLEAR, THE DICTA RENDERED IN THIS CASE IS, IN MY HUMBLE OPINION, THE REAL REASON THE 5TH DCA SUPPORTED THE ORIGINAL JUDGMENT OF ADOPTION.  HERE IT IS:

THE COURT SAID: “it would be unconscionable to allow C.P. to invoke the jurisdiction of the court for the sole purpose of creating a parent-child relationship between G.P. and D.P.P. and then to allow her to destroy that same relationship because her relationship with G.P. has ended. See Parker v. Parker, 950 So. 2d 388, 393-94 (Fla. 2007) (“The law should discourage adults from treating children they have parented as expendable  [*15] when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.”);T.M.H. v. D.M.T., 79 So. 3d 787, 802-03 (Fla. 5th DCA 2011) (“Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults[.]”), approved in part, disapproved in part,129 So. 3d 320 (Fla. 2013); Perez v. Perez, 769 So. 2d 389, 392 (Fla. 3d DCA 1999)(“Children should not be ‘played’ as if in a game of ping-pong . . . .”).

For all these reasons, we conclude that the final judgment of adoption is not void and that C.P. is estopped from challenging the adoption judgment. We reverse the order vacating the final judgment of adoption and reinstate it. On remand, the circuit court will conduct further proceedings to establish a parenting plan, including child support and related matters.

I WHOLE HEARTEDLY AGREE  THAT WHEN ADULT RELATIONSHIPS FALL APART, IT IS THE ADULTS WHO CAN AND SHOULD ABSORB THE PAIN OF BETRAYAL RATHER THAN INFLICT ADDITIONAL BETRAYAL ON THE INVOLVED CHILDREN.  AS A FAMILY LAW ATTORNEY, I SEE THE PAIN OF DIVORCE AND BROKEN FAMILIES EVERY DAY! IT IS NOT AN ISSUE EXCLUSIVE TO SAME SEX COUPLES, IT IS PREVALENT IN TRADITIONAL FAMILIES AS WELL.  I APPLAUD THE 5TH DCA FOR PROTECTING THIS CHILD’s PARENTAL RELATIONSHIPS WITHOUT REGARD TO THE SEX OF THE PARENTS.

I BELIEVE WE WILL SEE MORE AND MORE OF THESE OPINIONS IN THE COMING MONTHS…HOW LONG WILL IT TAKE FOR THE FLORIDA LEGISLATURE REPEAL FLA. STAT. 63.042(3)?… OR… WILL THE FLORIDA SUPREME COURT GET INVOLVED AND REVERSE THE 5TH DCA’s PROTECTION OF THIS CHILD’S PARENTAL RELATIONSHIPS?

IF YOU WOULD LIKE A COPY OF THE FULL OPINION, CONTACT ME AT gsilva@glsilva.com.  IF YOU HAVE OTHER QUESTIONS OR CONCERNS ABOUT YOUR FAMILY RELATIONSHIPS, YOU MAY CONTACT MY OFFICE AT 407-343-4730 AND SCHEDULE A CONSULTATION WITH MYSELF OR WITH ATTORNEY ALLEN.

RESPECTFULLY,

GAIL LINSCOTT SILVA