There have been advances in equality for same-gender couples. Marriage is now equally open to these couples and while adoption law in Florida has not yet changed, adoption is still possible through step-parent adoption for married couples and second parent adoptions for non-married couples. In addition to the dignity and respect that marriage equality provides for our relationships, marriage provides tremendous legal and financial protections to same-gender spouses. However, marrying does not provide all the protections your family needs to be legally secure. You should be mindful that there are very important legal steps that all same-gender spouses and transgender spouses need to take to ensure that their families are protected. Some of these include:
Protect your children with an adoption or parentage judgment
All non-biological parents still need an adoption or parentage judgment from a court recognizing that they are a legal parent, even if you are married and even if you are listed as a parent on the birth certificate. Being named on the birth certificate does not necessarily make you a parent under the law. Adoptions or parentage (paternity) judgments from a court will be necessary even though same-gender marriage is recognized in almost every state. Being married to a birth parent does not automatically protect you as a non-biological parent. There is no way to guarantee that you will have parental rights unless you have an adoption or court judgment. Without establishing legal rights, you could lose any right to your child if something happens to the other parent or if you break up. For example, you run the risk of being treated like the “step-parent” if the birth parent dies and you are not recognized as a parent and your child could end up with a relative instead of being able to stay with you. Investing a little time and money by consulting with an experienced attorney now can save you from being separated from your child and from spending thousands of dollars in legal fees later.
Protect property and decision making with estate planning
All married couples should make sure that they have planned for what will happen to their spouse if one of them passes away. This is done through estate planning- regardless of the size of the marital or individual estates. This could be through a will or trust, or designating your spouse as a beneficiary on your financial accounts and insurance policies. You should also fill out healthcare directives and consider the other documents that married couples have in their private documents such as the Durable Power of Attorney.
Protect you and your spouse’s ability to obtain public benefits
If you or your spouse are older, or if one of you has a disability, make sure you understand your rights under Social Security and Medicare. It is important to consult an attorney who specializes in this area of law because your spouse may be able to receive more benefits as your spouse than on his or her own. Obtaining benefits can be time-sensitive so consider applying as soon as possible to avoid unanticipated loss of benefits to you or your spouse.
Protect your rights in the event of a divorce
Without an agreement to the contrary, when you divorce your spouse, the law will be applied to the facts of your case and the judge will make a ruling. If a judge is making the decisions surrounding your divorce when there are children, then you are running the risk of destroying or crippling your ability to co-parent. And if a judge is making the decision surrounding your divorce, your assets and liabilities may be distributed in a manner which you never intended. Agreements can be made prior to the marriage (prenuptial agreements), or prior to the actual filing of a dissolution action through the collaborative process or through the mediation process as well (prior to or after the filing of a dissolution action).
Linda I. Braithwaite, is Board Certified in Marital and Family Law. Find out if she is available to help you with your case by calling 727-372-0465.
If your family is involved in the court system within matters such as divorce, paternity, post-divorce matters, temporary custody by extended family members, or other matters involving co-parenting and parenting plan issues, your child(ren) may benefit from the appointment of a guardian ad litem (GAL). Florida statutes provides that “in an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad item to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for a child to act as attorney or advocate; however, the guardian and the legal counsel shall not be the same person. In such actions which involve an allegation of child abuse, abandonment, or neglect as defined in s. 39.01, which allegation is verified and determined by the court to be well-founded, the court shall appoint a guardian ad litem for the child. The guardian ad litem shall be a party to any judicial proceeding from the date of the appointment until the date of discharge.” F.S. 61.401. The GAL is considered “the eyes and ears of the court”.
In the context of a family law case (as opposed to a dependency matter), the GAL is most often a paid professional and in many circuits in Florida, they are licensed attorney’s who have also received training as a GAL. The GAL can be appointed by motion filed by one of the parties or upon the court’s own motion. An order is then entered which sets forth the powers and authority of the GAL as well as the specific issues that the GAL is being requested to investigate. The specific powers and authority granted to the GALs under Chapter 61 Florida states is located at 61.403. Because the statutory list also states “including, but limited to”, the court will often add to those powers and authority if it will assist the GAL under the specific facts of the case.
Pursuant to 61.404 Florida Statutes, “the guardian ad litem shall maintain as confidential all information and documents received from any source described in s. 61.403(2) and may not disclose such information or documents except, in the guardian ad litem’s discretion, in a report to the court, served upon both parties to the action and their counsel or as directed by the court.” Therefore, other than the information disclosed within the report of the GAL or provided by testimony under oath, should not be disclosed to the parties or their attorneys, or other collateral witnesses.
Currently, under the evidence code and the case law interpreting the statutory law, most of the testimony and written reporting of the GAL appointed in a family matter, is inadmissible hearsay. Therefore, the court order appointing the guardian should also include a finding that the parties have waived the evidentiary hearsay objection. Otherwise, the time, money, and relationship that is developed between the child(ren) and the GAL, is wasted and without benefit.
Linda I. Braithwaite, is a licensed attorney who has been trained and appointed as a guardian at litem in several circuits in the state of Florida, which includes Pasco, Pinellas, Hernando, Hillsborough and Citrus counties. Find out if she is available for appointment as a guardian ad litem in your case by calling 727-372-0465.