Florida Same-Sex Partner Denied Parental Rights in Child Custody Case

Florida Same-Sex Partner Denied Parental Rights in Child Custody Case

For same-sex couples looking to have children, advances in reproductive technology have created the potential ability to biological children in profound ways.

In vitro gametogenesis (IVG), for example, has made it possible to make sperm cells from egg cells (and vice versa), meaning a male couple could create an egg from one partner’s sperm and fertilize the egg with the other partner’s sperm. A lesbian couple, alternatively, could artificially inseminate one partner’s eggs with sperm created from the other partner’s egg.

In each of these cases, the child — once born — would have genetics that are 100% based on the couple’s genes. If your first instinct is to think that the technology is far outpacing the law’s ability to react to these changes, you are exactly right. A 2017 child custody case in Florida is evidence of just that.

Former Same-Sex Partner Denied Parental Rights by 3rd District Court of Appeal

In the case of Castellat v. Pereira, a same-sex couple decided to have a child together. The partners used assisted reproductive technology to have a child, and both agreed at the time that Ms. Pereira would be the birth mother.

Ms. Pereira gave birth to twins — a boy and girl — in 2009, but the children were born prematurely and the boy survived for just two days. The girl survived with special needs, according to the case background. Both children were given the former partner’s surname Castellat, even though the birth mother was the only mother listed on the birth certificates of the two children.

For four years, Ms. Castellat helped raise the girl with Ms. Pereira, the birth mother. Both parties lived in a jointly owned home and shared parenting responsibilities until the parties separated in late 2013.

After breaking up, the birth mother severed all ties between her former partner and the child, all while changing the child’s surname to her own (Pereira). The former partner filed a petition seeking to continue the relationship with the child.

At issue in the case was whether the birth mother had the constitutional right to privacy, which would protect her right to sever ties when a former partner is neither the biological or legal parent of the child. Both the trial court and 3rd District Court of Appeal rejected the parental rights of the former partner, with one judge on the three-judge panel lamenting that laws are struggling to reflect society’s rapid changes.

The judge, Thomas Logue, went on to write that the child’s life may well have been enhanced by having a relationship and receiving financial benefits from the former partner. Still, benefits from a former partner who is neither a biological or legal parent cannot outweigh or override the birth mother’s constitutional rights.

Effectively, current Florida law clearly appears to struggling with an outdated body of law that cannot adequately address the complexities of the modern family unit. The Florida Supreme Court and subsequent cases have clearly stated it is not the government’s role to override a birth parent’s right to choose who has access to their child.

Same-sex couples should take note of this fact and may wish to establish themselves as legal parents to protect their parental rights. Perhaps future technologies like IVG will eventually render these issues moot since both parents will be the biological parent.

Until such a time, however, careful legal planning is needed for same-sex family units until the law adequately reflects society’s recent changes. If you have any questions about how current Florida law might impact your rights as a same-sex parent, contact The McKinney Law Group for a legal consultation.


If you have questions regarding Tampa family law, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected]