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For gay couples in Florida, an easier path to adoption

Kelly Essary, left, and Nila Allen play with their 2-year-old daughter Kyla Allen-Essary at their home in St. Pete Beach. They had to go through numerous legal hoops to ensure Allen got full parental rights with Kyla.
Published Jan. 25, 2015

Five years ago, when Vicky Fales and Heidi Quintana took their son home from the hospital, they entered into a state of worry beyond what most new parents experience. ¶ The Dunedin couple immediately grasped how vulnerable their family was in Florida where, at the time, gay men and lesbians couldn't legally marry or adopt children. The bans meant that Quintana — whom Aidan came to call ''mama'' — would have no parental rights if anything happened to Fales, his sole biological and legal parent. ¶ The couple had documents drawn up outlining Fales' wish that Quintana raise their son if she died, but they knew that might not hold up in court if Fales' relatives objected. ¶ "There was always that fear that this life that you bring into the world and that you help to nurture could potentially be taken away," Quintana, 43, said. "I tried not to worry, but of course it was always there.'' ¶ "There are members of my family I don't really speak to for personal reasons,'' Fales, 43, said. "That they could have more rights to Aidan than she would was really tough.'' ¶ For same-sex couples, protecting themselves and their children from worst-case legal scenarios has been a long-standing concern. ¶ Although gay individuals won the right to adopt children in 2010 when a judge struck down Florida's ban, same-sex couples still couldn't adopt jointly. The only way to give gay couples the same parental rights as straight couples was a cumbersome, costly legal procedure that experts say often depended on finding sympathetic judges. But as family law in Florida shifts to recognize legal gay marriage, adoption is about to become significantly easier.

• • •

In recent years, a process known as second-parent adoption has been at the cutting edge of gay family law in Florida, but even lawyers who advocated its use had a love-hate relationship with it. Commonly thought of as the best way to cement a nonbiological parent's rights, the process involved a fair amount of bureaucracy and legal acrobatics, even for couples who had been raising children together for years.

Kelly Essary and her partner Nila Allen raised Essary's biological daughter together since she was born. But winning parental rights for Allen took about a year and cost roughly $6,000, a typical price tag for a second-parent adoption.

They filled out reams of paperwork, collected letters of recommendation and paid for a home study, in which a specialist visited their house several times and asked friendly but probing questions. Both women had to submit to fingerprinting and background checks.

Inside the walls of their St. Pete Beach home, familial ties were strong and defined. Outside, they were two strangers sharing a diaper bag.

"It was an odd process because as two people, you bring this baby home, and then someone has to evaluate whether you're fit parents or not," said Essary, 34. "It was kind of crazy really."

But now that same-sex marriage is legal in Florida, family lawyers say second-parent adoption could become obsolete in the gay community.

"Married gay couples should be able to approach adoption just like other couples," said Mary Greenwood, a family lawyer in Brandon whose firm has helped same-sex couples adopt.

Like most other family lawyers, Greenwood said because many states and countries still don't recognize same-sex marriages, gay couples in Florida should continue to use adoption to ensure their children have two legal parents.

But in place of second-parent adoptions, married gay couples now have a significantly less expensive and time-consuming alternative, a process their straight counterparts have long-used called step-parent adoption.

Already, several same-sex couples in Orlando have successfully completed step-parent adoptions, which don't require background checks, fingerprints or home studies. They typically cost several thousand dollars less than second-parent adoptions, are less intrusive and shave months off the time it takes to complete an adoption.

For married gay couples adopting children out of the foster care system, the process is about to become easier still. A week after gay marriage became legal, Florida's Department of Children and Families distributed a memo essentially instructing community-based care agencies that married same-sex couples can now adopt children jointly, rather than having one partner adopt the child and the other partner go through a second-parent adoption.

So far, opponents of gay marriage have been silent on these changes. That's not to say there won't be future challenges to gay adoption, but most opponents are currently focused on the outcome of an expected U.S. Supreme Court ruling that could cement the legality of gay marriage nationwide.

• • •

As technical as this shift sounds, family lawyers say it will likely lead to a boom in adoptions by married gay couples.

In Gulfport, Jan and Denise Lowe had been saving for the better part of a year to pay for a home study to adopt their two grandchildren, who are already in their care. When gay marriage became legal, Jan Lowe, 54, immediately called a lawyer, who assured her a home study would no longer be necessary.

"People don't even realize what transpired on Jan. 6 totally changed our world," she said. "It has removed a major stumbling block for us."

Even among states historically hostile to gay rights, Florida's gay adoption ban stood out.

Passed in 1977, the statute was the only one in the country to explicitly ban gay men and lesbians from adopting children. The state would consider adoption applications from other potential adoptive parents on a case-by-case basis — including people whose previous adoptions failed, or who had a history of domestic violence or drug abuse — but gay applicants were categorically ruled out.

Since the ban fell in 2010, hundreds of gay couples have adopted children through second-parent adoptions. Yet lawyers still considered the process risky.

"It was just complicated," said Tampa-based family lawyer Jeanne Tate. "We'd have different results for the same clients depending on what judge you drew, or what county you were in."

One case in Seminole County, where a judge invalidated a second-parent adoption after a lesbian couple broke up, became legendary in family law circles. The Florida Supreme Court ultimately reversed the judge's ruling, but lawyers' anxiety didn't fade.

Fear of animus against gay couples was so pervasive, that family lawyers in North Florida said they regularly advised their clients to file for adoption in Hills­borough or Miami-Dade counties, where the judges had a reputation for being welcoming. One lawyer said she successfully completed about 40 same-sex adoptions in Duval County. But others didn't dare try, worried that one negative ruling would ripple statewide.

"One of the issues for me was the overall conservative nature of North Florida," said Patricia Davis, a Jacksonville family lawyer who has previously filed gay adoption cases in Miami-Dade.

For her clients, "it was unfortunate that they had to spend extra money and time away from work and home to travel six hours down state to adopt with the confidence that no bias or prejudice would stand in their way," she said.

As arduous as the process could be, not having the legal protection offered by adoption felt worse.

Four years after their son was born, Fales surprised Quintana on Mother's Day with a turquoise wallet. Inside was a photo of Aidan and the business card of a family lawyer known for her work with same-sex couples.

"I still get choked up thinking about it," Quintana said. "I don't think anything can describe that absolute peace and certainty that he is my son."

Times staff writer Steve Nohlgren contributed to this report. Contact Anna M. Phillips at aphillips@tampabay.com or (813) 226-3354. Follow @annamphillips.

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