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It's The Law: Homosexuals Might Be Able To Adopt In Florida

Q: A friend of mine is a foster parent who has fostered six children over the past few years. All of those children were eventually placed for adoption in other homes. When I asked her why she did not adopt any of the children, she replied that because she was in a homosexual relationship Florida law prohibited her and her partner from adopting. Is that correct?

A: Section 63.042 of Florida Statute lists who may adopt. That statute provides that the following persons may adopt:

  1. husband and wife jointly;
  2. an unmarried adult;
  3. a married person without the other spouse joining the person to be adopted is not his or her spouse and if the other spouse is a parent of the person to be adopted and consents to the adoption or failure of the other spouse to join is excused for good cause shown or in the best interest of the child.

That statute includes one prohibited category. No person otherwise eligible to adopt under the statute may adopt if that person is a homosexual. The ban on homosexual adoption was created by the legislature in 1977.

Over the years, the ban on homosexual adoptions withstood attack in the courts. In 2004, the Federal Appeals Court for the Eleventh Circuit upheld the statute explaining its reasoning in a 25 page decision in the case Lofton v. Secretary of the Department of Children and Family Services.

In the Lofton case, the court pointed out that under Florida law, adoption is not a right. It is a privilege granted by the State. The State has an overriding interest in adoptions to be sure that the best interests of children are met, which makes the decision to adopt a child a public act. The court explained that there is no fundamental right to adopt nor any fundamental right to be adopted which would be protected by the due process clause of the United States Constitution. Foster parents seeking to adopt and the children with whom they have formed a bond have no due process protected liberty interest in family integrity and no reasonable expectation of a permanent relationship.

The court explained that the statute also did not violate equal protection of the laws. The equal protection guarantee is intended to prohibit the government from drawing distinctions between individuals based solely on differences that are irrelevant to legitimate governmental objective. In finding the statute also passed the equal protection test, the court held it rationally advanced a legitimate State interest of furthering the best interests of adopted children by placing them in families with married fathers and mothers.

On November 25, 2008, a Miami trial judge disagreed with the Lofton court. In that case, the court heard evidence of how a foster parent took in two brothers, ages 4 and 4 months. The 4 year old was the primary caretaker for her 4 month old brother. Testimony chronicled how the children improved and even thrived in a household without a mother, but with two foster parents the children called “papi” and “daddy” and the 8 year old biological son of one of the foster parents.

The court heard evidence over 4 days of trial. Testimony included multiple psychologists, a medical doctor, social workers and even university professors. The court concluded that the only bar to adoption was the statute prohibiting adoptions by homosexuals.

The court ruled the statute violated the children’s right to permanency and stability in adoptive placement, as established by other laws pertaining to adoption and a compelling state interest in providing permanent adoption placement as quickly as possible. The court also held the statute violated the equal protection clause of the Florida Constitution, which reads “All natural persons, female and male alike, are equal before the law…”

The State argued that a homosexual life style was not good for children. The court rejected that argument, based upon expert testimony that children raised in homosexual households do not suffer from any social or other problems greater than the population at large, nor are such relationships more unstable than traditional families.

The State argued that children may experience social stigmatization with homosexual parents. The court again rejected the argument, finding that the expert testimony and studies failed to support any social stigmatization.

The State’s final argument was that the ban on homosexual adoption rationally related to Florida’s legitimate interest in promoting public morality. The court found no public morality interest applicable to the adoption context. The statute does not prohibit homosexuals from being foster parents. Since the statute did not prohibit a long term foster parenting relationship, but only adoption, the court found there was no rational connection between the ban on adoption and promoting morality. The court further found adoption to be a very noble act. The court authorized adoption.

At least one other trial court in the State of Florida has found the ban on homosexual adoption unconstitutional. The Florida Supreme Court has not yet decided this issue. Accordingly, effort to adopt by homosexuals may prove a long and challenging procedure, through trial court and appeal. The process may involve substantial attorney fees in addition to delay and may not even be successful.

If your friend is truly interested in adopting, I suggest she discuss the matter with an experienced adoption attorney. The attorney should be able to provide an update as to all current decisions in Florida and around the country, and discuss possible future course for her in the adoption process.

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