A 16th circuit judge has approved the adoption of a Key West boy by one of his gay foster fathers, calling Florida's categorical ban on gay adoption "unconstitutional on its face" and deciding that adoption was in the best interest of the child.
Judge David Audlin entered a 67-page order in response to the fathers' petition for adoption, which must be in one person's name if the adoptive parent is not married. The published ruling has deleted the names of the involved parties, while the original has been sealed.
The order details the family life that two local businessmen have cultivated for as many as 32 foster children since about 2000. The child in question, whom Audlin calls John Doe, came to live at the foster home in 2001 at about age 5. He has not lived anywhere else since, and his mother's rights as a parent have been terminated.
In 2006, the courts made the two men the child's permanent, legal guardians, but they still wanted to adopt and provide the child with a sense of permanency. The petitioner also told Audlin that guardianship does not come with the same rights as adopting a child, meaning if the couple died, the child would not be entitled to survivors' benefits or other advantages afforded to blood or legally adopted relatives.
In filing the request for adoption, the petitioner claimed that the ban on gay adoption is unconstitutional, in part because it is a "bill of attainder." Such laws "serve to inflict punishment without a judicial trial."
"The petitioner has proven ... that [the ban] constitutes punishment of Floridians because of their sexual orientation. The facts and circumstances surrounding enactment of [the law] demonstrate that its singular purpose was to repress gay Floridians as a group, without any consideration being given to allowing even one gay Floridian an opportunity to establish his actual ability to parent."
The ruling, signed by Audlin on Aug. 29, does not mean a statewide end to the ban on gay adoption, as such a blanket prohibition could be overturned only if the current case were appealed to a higher court and that court agreed with Audlin.
After seven years in the same home, with the same foster parents, and the same pets, swimming pool and after-school activities, the child being adopted is in his best interest, Audlin said.
"The fact that the petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt," Audlin wrote.
Florida law prevents both foster fathers' names from being on the petition, but the petitioner's partner of 15 years testified in court that he understands and agrees that he will cease being the child's co-guardian upon the adoption being entered, the order states. He testified that he gladly would relinquish that legal standing if it allowed the child to have a father finally.
Audlin could not be reached for comment Wednesday, as the courts still were closed because of Hurricane Ike.