Winning marriage equality nationwide (including in Florida) was cause for celebration this year, but it did not necessarily cure the legal problems of same-sex co-parents who had not previously been able to marry, as shown by an October 14 ruling by the Florida 2nd District Court of Appeal, which ordered the dismissal of a lawsuit by a woman seeking to restore contact with children she was raising with her former partner. Russell v. Pasik, 2015 WL 5947198, 2015 Fla. App. LEXIS 15177. Unfortunately, the court of appeal was not willing to commit itself in this ruling to any opinion whether this problem would disappear had the women been married to each other when their children were born, postponing any answer to a pressing question now confronting same-sex married couples in Florida (and many other states) who want to have children together.
Susan Russell and Elizabeth Pasik began their relationship in 1998 and subsequently decided to have and raise children together. Pasik obtained anonymous donor sperm through a sperm bank. The women used it to undergo alternative insemination and to both have children. Each of the women bore two children conceived from this donor sperm, so the children were all related to each other, either as full or half-siblings, and all the children were given the same last name combining the names of their two mothers. Russell gave birth to children in 2006 and 2008. The children were raised together by Russell and Pasik until their relationship ended in April 2011, when they separated, each taking their “own” children but continuing contact with the other children. Two years later, however, Russell refused court’s opinion does not mention whether Russell continued or wanted to have contact with the children born to Pasik.
At the time Russell cut off Pasik’s contact, Florida courts had not yet ruled in favor of marriage equality. Although second-parent adoptions may have become available by then, according to the court in this case, because a Florida court ruling had invalidated the state’s statutory ban on “homosexuals” adopting children, they had not availed themselves of that option.
Pasik filed a petition in the Manatee County Circuit Court seeking a “timesharing” order, claiming to be the de facto or psychological parent of these children. Russell filed a motion to dismiss the case, arguing that Pasik was not a legal parent of the children and thus did not have “standing” to seek a visitation order. At the hearing on the motion, Circuit Judge Marc B. Gilner denied Russell’s motion, stating that “the unusual facts as set forth in the petition sufficiently set forth a cause of action.” Russell then filed a petition with the 2nd District Court of Appeal, asking it to intervene and grant her motion to overturn Gilner’s ruling.
It is unusual for somebody in Russell’s petition to be able to appeal a decision that refused to dismiss the case against her but did not rule on the merits of Pasik’s petition, as appellate courts don’t normally intervene at this point in a proceeding. Judge Craig C. Villanti, writing for the court of appeal, pointed out that this kind of appellate relief is only available if Russell can show “a departure from the essential requirements of the law” by the trial court that would result in “material injury for the remainder of the case” which “cannot be corrected” by an appeal after a ruling by the trial judge awarding timesharing to Pasik. In other words, Russell would have to show irreparable injury to her constitutional rights in order to get the court of appeal to intervene at this stage of the case. In its October 14 ruling, the court found that Russell qualified for immediate appellate relief.
“As the mother of the children with whom Pasik seeks timesharing,” wrote Villanti, “Russell has a constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time, that the State would necessarily be interfering with by just allowing the case to proceed.” He cited a string of prior Florida cases finding that forcing a parent to litigate a third party’s attempt to gain visitation rights would impose an irreparable injury on the parent. The court of appeal found that the trial judge had committed “a violation of a clearly established principle of law resulting in a miscarriage of justice” when it allow Pasik to proceed with the case.
Villanti pointed out that in her initial petition, Pasik conceded that she is not a legal parent to the children. “Taking this assertion as true,” wrote Villanti, “Pasik’s claim that she is entitled to timesharing depends on a finding that her status as a de facto or psychological parent is sufficient to confer standing as a parent to seek visitation.” Although some prior Florida court rulings that Pasik cited had favorably considered this contention, they all predated a more recent ruling by the Florida Supreme Court, Von Eff v. Azieri, 720 So.2d 510 (1998), which involved an attempt by grandparents to win visitation rights over the objection of a child’s legal parents. In that case, the Florida Supreme Court cited “the fundamental and constitutional right of privacy” and “unequivocally reaffirmed adoptive or biological parents’ right to make decisions about their children’s welfare without interference by third partied,” according to a more recent Florida appeals court ruling relying on Von Eff.
“It is this unequivocal distinction between ‘adoptive or biological parents’ and others that Pasik would now have us look past in finding that the latter has the same rights as the former,” wrote Villanti. “But the law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the rights to visitation, as the biological or legal parents.” The court of appeal found that Judge Gilner “clearly departed from the essential requirements of the law by finding that Pasik had standing” to seek a visitation order.
While acknowledging Pasik’s argument that Russell had invited her to raise the children together as a “united endeavor,” which would arguably make Pasik more than a mere “third party” in this situation,” Villanti wrote, “we are uncertain that it would be sufficient to overcome the lack of standing,” pointing to analogous cases where Florida had rejected such arguments in other situations. As to Pasik’s argument that having actually acted as a parent to these children she should be held to have acquired some form of parental rights to continued contact with them, the court was unpersuaded. “When, as in the present case, there is not a biological connection between petitioner and child and it is a non-parent that is seeking to establish legal rights to a child, there is no clear constitutional interest in being a parent,” he wrote. “Thus, Pasik’s argument must fail.”
While the court of appeal disclaimed a lack of sympathy for Pasik’s “desire to visit with the children that she helped raise over the course of several years,” and acknowledged “the importance of the children being able to visit with someone who, for all intents and purposes, they have considered to be a parent from the time they were born,” the court nonetheless refused to rule in her favor, insisting that any change in the legal definition of a parent must come from the legislature, not the court.
The court observed that “the events of this case all occurred prior to the Supreme Court’s decision in Obergefell v. Hodges” on June 26, 2015, which established the fundamental constitutional right of same-sex couples to marry, and as well before Florida state and federal courts had ruled in favor of marriage equality during 2014. However, the court pointed out, at the time when these women were raising these children together as a couple, they “could not have been lawfully married in the State. Likewise, the fact that they resided together in the same residence as a family unit for several years prior to the expiration of their relationship did not confer on the parties any special legal status” because Florida had long ago abolished the status of common law marriage. “Because this issue is not before us,” the court continued, “we decline to comment on whether, had the parties been married when the children at issue were born, this would have been sufficient to grant Pasik standing to seek visitation. But regardless of her marital status, Pasik still could have made the decision to adopt the children, a decision that would have arguably guaranteed her the rights of a parent that she now seeks.”
The court of appeal found that Judge Gilner had failed to conduct “a thorough, front-end factual analysis to determine standing in this case,” merely looking at Pasik’s factual allegations and finding them sufficiently “unusual” to justify rejecting Russell’s motion to dismiss the case. But the court of appeal found that Pasik’s factual allegations “irrefutably indicate that it was legally impossible for Pasik to establish standing to petition the trial court for timesharing with the children,” and thus her petition should have been dismissed. The court of appeal granted Russell’s petition for review and quashed Judge Gilner’s order.
A long list of amicus parties filed briefs in support of Pasik’s right to seek visitation with these children, with Cristina Alonso, Jessica Zagier Wallace, Michael Sampson and Ashley Filimon appearing as her attorneys. Paul F. Grondahl represented Russell. Among the LGBT groups who supported Pasik’s claim were Lambda Legal, the National Center for Lesbian Rights, and Family Equality Council. She also had support from law school clinics and other organizations concerned with child welfare. Perhaps the next stop for this case could be the Florida Supreme Court.