IN THE SUPREME COURT OF FLORIDA CASE NO. SC D.M.T., Appellant, v. T.M.H., Appellee.

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IN THE SUPREME COURT OF FLORIDA CASE NO. SC D.M.T., Appellant, v. T.M.H., Appellee. On Appeal from the District Court of Appeal of Florida, Fifth District BRIEF OF AMICI CURIAE UNIVERSITY OF FLORIDA
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IN THE SUPREME COURT OF FLORIDA CASE NO. SC D.M.T., Appellant, v. T.M.H., Appellee. On Appeal from the District Court of Appeal of Florida, Fifth District BRIEF OF AMICI CURIAE UNIVERSITY OF FLORIDA FREDRIC G. LEVIN COLLEGE OF LAW CENTER ON CHILDREN AND FAMILIES, UNIVERSITY OF MIAMI SCHOOL OF LAW CHILDREN AND YOUTH LAW CLINIC, NOVA SOUTHEASTERN UNIVERSITY LAW CENTER CHILDREN AND FAMILIES CLINIC, AND BARRY UNIVERSITY SCHOOL OF LAW CHILDREN AND FAMILIES CLINIC, IN SUPPORT OF APPELLEE T.M.H. Joseph S. Jackson, Esq. Florida Bar No University of Florida Fredric G. Levin College of Law Center on Children and Families P.O. Box Gainesville, Florida Telephone: (352) Counsel for Amici Curiae TABLE OF CONTENTS TABLE OF CITATIONS... ii IDENTITY AND INTEREST OF AMICI... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 I. Depriving K of a Legal Relationship with TMH Violates K s Right to the Equal Protection of the Laws... 2 II. The Child s Interest in an Established Parent-Child Attachment Relationship Is Constitutionally Protected A. The federal and state constitutions protect a biological parent s interest in an established parent-child attachment relationship B. The child s interest in an established parent-child attachment relationship also merits constitutional protection CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i TABLE OF CITATIONS Florida Constitution Art. I, 2, Fla. Const Art. I, 23, Fla. Const Cases Dep t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla.1993)... 3 Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005) Eisenstadt v. Baird, 405 U.S. 438 (1972) Fla. Dep t. of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010) Fla. Dep t of Revenue v. Cummings, 930 So. 2d 604 (Fla. 2006)... 3 Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73 (1968) Gomez v. Perez, 409 U.S. 535 (1973) Grissom v. Dade County, 293 So. 2d 59 (Fla. 1974) In re Burris Estate, 361 So. 2d 152 (Fla. 1978) In re Jasmon O., 878 P.2d 1297 (Cal. 1994) ii In re T.W., 551 So. 2d 1186 (Fla. 1989) Lawrence v. Texas, 539 U.S. 558 (2003)... 13, 14 Lehr v. Robertson, 463 U.S. 248 (1983) Meyer v. Nebraska, 262 U.S. 390 (1923) Oldfield v. Benavidez, 867 P.2d 1167 (N.M. 1994) Padgett v. Dep t of Health & Rehab. Servs., 577 So. 2d 565 (Fla. 1991)... 14, 15, 17, 19 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833(1992) Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) Santosky v. Kramer, 455 U.S. 745 (1982)... 15, 17, 19 Stanley v. Illinois, 405 U.S. 645 (1972)... 15, 17, 19 State v. J.P., 907 So. 2d 1101 (Fla. 2004)... 13, 16, 20 State v. Leicht, 402 So. 2d 1153 (Fla.1981) Troxel v. Granville, 530 U.S. 57 (2000) Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) iii Statutes , Fla. Stat (1), Fla. Stat (2)(c), Fla. Stat.... 4, 11, (3), Fla. Stat , Fla. Stat , Fla. Stat , Fla. Stat , Fla. Stat.... 4, (1), Fla. Stat , Fla. Stat (2), Fla. Stat.... 3, , Fla. Stat.... 2, , Fla. Stat Other Authority Am. Acad. of Pediatrics: Committee on Early Childhood, Adoption, and Dependent Care, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145 (2000)... 5, 18 Am. Acad. of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002)... 7 Am. Psychiatric Ass n, Adoption and Co-Parenting of Children by Same-Sex Couples: Position Statement (2002) iv Am. Psychological Ass n. Br. of Am. Psychological Ass n. as Amicus Curiae Supporting Appellee, Fla. Dep t. of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010), available at 9 Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20:3 Child & Adolescent Soc. Work J. 159 (2003)... 8 J. Bowlby, Attachment and Loss: Retrospect and Prospect, 52 Am. J. Orthopsychiatry 664 (1982)... 6 A. Brewaeys, et al., Donor Insemination: Child Development and Family Functioning in Lesbian Mother Families, 12:6 Human Reproduction 1349 (1997)... 8 David M. Brodzinsky et al., Children s Adjustment to Adoption: Developmental and Clinical Issues 13 (1998) Raymond D. Chan et al., Psychosocial Adjustment Among Children Conceived Via Donor Insemination by Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (April 1998)... 7 Denise Donnelly & David Finkelhor, Does Equality in Custody Arrangement Improve Parent-Child Relationship? 54 J. Marriage & Fam. 837 (1992)... 7 Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164 (2010)... 9 Nanette Gartrell & Henny Bos, U.S. National Longitudinal Lesbian Family Study: Psychological v Adjustment of 17-Year-Old Adolescents, 126 Pediatrics 28 (2010)... 9 S. Golombok et al., The European Study of Assisted Reproduction Families: Family Functioning and Child Development, 11:10 Human Reproduction 2324 (1996)... 8 E. Mavis Hetherington et al., What Matters? What Does Not? Five Perspectives on the Association Between Marital Transitions and Children s Adjustment, 53 Am. Psychol. 167 (1998)... 6 Joseph S. Jackson & Lauren G. Fasig, The Parentless Child s Right to a Permanent Family, 46 Wake Forest L. Rev. 1 (2011)... 6, 17, 18, 19 Michael Lamb, Placing Children s Interests First: Developmentally Appropriate Parenting Plans, 10 Vir. J. of Social Policy & the Law 98 (2002)... 7 B. McCandlish, Against All Odds: Lesbian Mother Family Dynamics, in Gay and Lesbian Parents (Frederick W. Bozett ed., 1987)... 8 Nat l Research Council and Institute of Medicine, From Neurons to Neighborhoods: The Science of Early Childhood Development 265 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000)... 6, 18 Nat l Scientific Council on the Developing Child, Young Children Develop in an Environment of Relationships (2004)... 5, 18 Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Develop (1992)... 7 vi United Nations General Assembly, Resolution 44/25, November 20, 1989, Article 9, Judith S. Wallerstein & Sandra Blakeslee, Second Chances: Men, Women and Children a Decade After Divorce (1989)... 6 vii IDENTITY AND INTEREST OF AMICI CURIAE Amici 1 are Florida law school clinics and centers expert in and devoted to representing the legal rights and best interests of children, who submit this brief in support of Appellee TMH based on the rights and interests of the parties child. SUMMARY OF ARGUMENT Under Florida law children are entitled to the care, companionship and support of both parents when the parents relationship dissolves. Social science research confirms the vital importance of this contact, for children of same-sex couples just as for children of opposite-sex couples. Applying Florida s assisted reproduction statutes to deprive K of a legal relationship with TMH therefore violates K s right to the equal protection of the laws: a State may not deny a class of children substantial benefits accorded to children generally simply because the State disapproves of the parents relationship. Moreover, as a biological parent who actually parented her child from birth for nearly four years, TMH has a constitutionally protected interest in her relationship with K. K s interest in maintaining that relationship also warrants constitutional protection in light of the paramount importance such relationships have in the lives of children. The judgment below should be affirmed. 1 The University of Florida Fredric G. Levin College of Law Center on Children and Families, the University of Miami School of Law Children and Youth Law Clinic, the Nova Southeastern University Law Center Children and Families Law Clinic, and the Barry University School of Law Children and Families Clinic. 1 ARGUMENT KT-H (hereafter K ), the child whose welfare by statute and under the common law must be the Court s primary consideration in this matter, is now eight years old. Conceived with the use of assisted reproductive technology from the egg of TMH and an anonymous sperm donor, K was born in Brevard County, Florida to DMT, a woman in a same-sex committed relationship with TMH. DMT and TMH jointly planned to bring K into the world and to raise her in their home as their child, and they did so for two and a half years, sharing day-to-day childrearing responsibilities. DMT and TMH then separated, but continued to share parenting responsibilities until K was nearly four years old; K lived part of the time with DMT and part of the time with TMH. At that point DMT moved with K to an undisclosed location and deprived TMH of all further contact with K. TMH brought this action to establish her parentage and restore her access to her child. I. Depriving K of a Legal Relationship with TMH Violates K s Right to the Equal Protection of the Laws. DMT argues that she is K s sole legal parent because TMH and DMT do not qualify as a commissioning couple under Florida s assisted reproduction statutes, and TMH therefore relinquish[ed] all maternal rights and obligations with respect to resulting children as the donor of an[] egg under Section , Florida Statutes. That argument must be rejected. Applying the statutes to deprive K of a legal relationship with TMH violates K s right to the equal protection of the 2 laws. Under Florida law, the general rule is that children have and are entitled to the support of two parents. Outside the context of assisted reproductive technology, if the mother is married when the child is born, her husband is presumed to be the child s father, and the presumption may only be rebutted where the child s best interests would be served. Fla. Dep t of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006); Dep t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305, 309 (Fla.1993). If the mother is not married, she or the father or the child may bring an action to establish paternity under , Florida Statutes; paternity also may be established by adjudication, affidavit or acknowledgment in a variety of contexts, see (1), Florida Statutes. For children conceived with the use of assisted reproductive technology, Florida law generally provides that both of the intended parents are the child s parents. See (2), Fla. Stat. (defining commissioning couple as the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents ); , Fla. Stat. (providing procedure for commissioning couple to affirm their status as the legal parents of the child); see also , Fla. Stat. (confirming parental status of married couple to child born within wedlock when both husband and wife have consented in writing to use of assisted reproductive 3 technology, regardless of genetic connection to child). In all of these contexts, the child is entitled to the support of both parents, even when the parents relationship dissolves. See 61.29, Fla. Stat. (establishing public policy of this State that [e]ach parent has a fundamental obligation to support his or her minor or legally dependent child ); 61.13(1), Fla. Stat. (authorizing court to order either or both parents to pay child support in dissolution of marriage proceeding); , Fla. Stat. (directing court to order either or both parents to pay child support in paternity proceeding); 61.30, Fla. Stat. (establishing presumptive amount of child support to be ordered in proceedings for such support under any chapter). More importantly, the child is presumptively entitled to the on-going care and companionship of both parents when the parents relationship dissolves. Section , Florida Statutes, declares the Legislature s purpose to safeguard meaningful family relationships and [t]o mitigate the potential harm to children caused by the process of legal dissolution of marriage. Section 61.13(2)(c) expressly declares the State s public policy to be that each minor child [have] frequent and continuing contact with both parents after the parents separate and further requires the court to order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Section 61.13(3) confirms that in 4 establishing its orders concerning parental responsibility, the court s primary consideration must be the best interest of the child, and in subsections (d) and (o) the statute further directs the court to consider, inter alia, the desirability of maintaining continuity and [t]he particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation. While chapter 61 applies by its terms to contexts where the parents are married, chapter 742 extends these principles to contexts where the parents are not married, expressly authorizing the court in a paternity proceeding to make a determination of an appropriate parenting plan, including a time-sharing schedule, in accordance with chapter , Fla. Stat. Social science research confirms the vital importance to a child of this presumptive right to maintain existing relationships with both parents when the parents relationship dissolves. Paramount in the lives of children is their need for continuity with their primary attachment figures. Am. Acad. of Pediatrics: Committee on Early Childhood, Adoption, and Dependent Care, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145, 1146 (2000) (hereafter Young Children in Foster Care); see also Nat l Scientific Council on the Developing Child, Young Children Develop in an Environment of Relationships 4 (2004) (hereafter Environment of Relationships) (children need sustained, reliable 5 relationships within the family ); Nat l Research Council and Institute of Medicine, From Neurons to Neighborhoods: The Science of Early Childhood Development 265 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000) (hereafter Neurons to Neighborhoods); J. Bowlby, Attachment and Loss: Retrospect and Prospect, 52 Am. J. Orthopsychiatry 664, 666 (1982). 2 Studies of children of divorced parents confirm the psychological harm that can result when a child is separated from a parent to whom he or she is attached. See, e.g., Judith S. Wallerstein & Sandra Blakeslee, Second Chances: Men, Women and Children a Decade After Divorce (1989) (concluding that children who do not maintain contact with parents suffer a continuing sense of loss and sadness); E. Mavis Hetherington et al., What Matters? What Does Not? Five Perspectives on the Association Between Marital Transitions and Children s Adjustment, 53 Am. Psychol. 167, 177 (1998) (same). Accordingly, when their parents relationship dissolves, children generally benefit from continued contact with both parents. [C]hildren who are deprived of meaningful relationships with one of their parents are at 2 See generally Joseph S. Jackson & Lauren G. Fasig, The Parentless Child s Right to a Permanent Family, 46 Wake Forest L. Rev. 1, (2011) (discussing social science research on the development and importance of, and need for continuity in, a child s attachment bonds with her parental caregivers); Br. of Amici Curiae National Association of Social Workers et al. (same). 6 greater risk psychosocially, even when they are able to maintain relationships with their other parents. Michael Lamb, Placing Children s Interests First: Developmentally Appropriate Parenting Plans, 10 Vir. J. of Social Policy & the Law 98, (2002); see also Denise Donnelly & David Finkelhor, Does Equality in Custody Arrangement Improve Parent- Child Relationship?, 54 J. Marriage & Fam. 837, 838 (1992) ( Children who maintain contact with both parents tend to be better adjusted ). The findings are no different for children of same-sex parenting relationships: when a lesbian couple that has jointly raised a child since birth separate, it is reasonable to expect that the best interests of the child will be served by preserving the continuity and stability of the child s relationship with both parents. Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Develop. 1025, 1037 (1992) (emphasis added). This result is not surprising, since parent-child attachment bonds form in same-sex parent families exactly as they do in opposite-sex parent families, regardless of legal or biological connections. See Am. Acad. of Pediatrics, Technical Report: Coparent or Second- Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 341 (2002) (finding that [c]hildren s optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes ); Raymond D. Chan et al., Psychosocial Adjustment 7 Among Children Conceived Via Donor Insemination by Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (April 1998) ( Our results are consistent with the general hypothesis that children s well-being is more a function of parenting and relationship processes with the family [than] household composition or demographic factors. ); Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20:3 Child & Adolescent Soc. Work J. 159, 161, (2003) (reporting findings in study of adopting lesbian couples, where legal relationship was established by only one partner, that quality of care was the salient factor in the establishment of an attachment hierarchy and that parental legal status was not a decisive variable[] in the development of a primary attachment bond ); B. McCandlish, Against All Odds: Lesbian Mother Family Dynamics, in Gay and Lesbian Parents (Frederick W. Bozett ed., 1987) (reporting findings based on clinical evaluation of preschool children of lesbian couples, that when both women in the relationship care for a child, the child becomes attached to both); S. Golombok et al., The European Study of Assisted Reproduction Families: Family Functioning and Child Development, 11:10 Human Reproduction 2324, 2330 (1996) (finding that the lack of a genetic link between one or both same-sex parents and the child did not have negative consequences for parent-child relationships); A. Brewaeys, et al., Donor Insemination: Child Development and Family Functioning in Lesbian 8 Mother Families, 12:6 Human Reproduction 1349, 1356 (1997) (reporting findings in study of child development in lesbian families that among lesbian mothers, the quality of the parent-child interaction [does] not differ significantly between the biological and the [non-biological] mother ; a strong mutual attachment [develops] between the [non-biological] mother and the child ; and the [nonbiological] mother in the lesbian families [is] regarded by the child as just as much a parent as the father in heterosexual families. ). Indeed, more generally, social science research has now established that parents sexual orientation has no measureable effect on the quality of parent-child relationships, that lesbian and gay parents are every bit as fit and capable as heterosexual parents, and that their children are as psychologically healthy and well-adjusted as children reared by heterosexual parents. Br. of Am. Psychological Ass n. as Amicus Curiae Supporting Appellee, Fla. Dep t. of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010) at 14, 16 (footnote omitted), available at (collecting studies regarding the suitability of gay and straight people as parents); see also Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164, 175 (2010); Nanette Gartrell & Henny Bos, U.S. 9 National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, 126 Pediatrics 28, 34 (2010); Am. Psychiatric Ass n, Adoption and Co-Parenting of Children by Same-Sex Couples: Position Statement (2002) ( Numerous studies
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