Can One Parent Take the Child During a Same-Sex Divorce in Florida?

When a same-sex couple decides to divorce, and children are involved, things can get complicated—fast. We've seen this question more than once:

“We're a same-sex couple getting divorced. We each gave birth to one child, but we're both listed on both birth certificates. Can my spouse just take the child she gave birth to and keep them from me until the divorce is final?”

The short answer: No, not legally.

Here's what you need to know.

1. Children Born During a Legal Marriage Are Presumed to Be Children of the Marriage

In Florida, the law recognizes that if a couple is legally married, any child born during that marriage is legally presumed to be the child of both spouses—regardless of which partner gave birth. This is true for same-sex couples, heterosexual couples, and everyone in between.

So even if Parent A gave birth to Child A, and Parent B gave birth to Child B, the law still sees both children as children of both parents.

That means both parents have equal legal rights and responsibilities—until a judge orders otherwise.

2. Neither Parent Can “Take” the Child Without a Court Order

A lot of people are surprised to learn that until there is a court order in place, both spouses still have equal rights to their children. That means neither parent can:

• Relocate with the child without permission
• Withhold timesharing or contact
• Make major decisions on their own (school, medical care, etc.)

If a parent attempts to do any of the above, the other parent can take action immediately.

3. What Can You File to Prevent This?

If you're worried your spouse may try to leave with the child or is already doing things to exclude you, you can file:

• Emergency Motion for Injunctive Relief – This asks the court to stop a parent from removing the child, changing schools, leaving the state, or cutting off contact.
• Motion for Temporary Timesharing and Parental Responsibility – This puts a temporary parenting plan in place while the divorce is pending. It ensures the child maintains access to both parents and that big decisions aren't made unilaterally.

These motions can often be filed quickly, and some judges will set hearings within days if the situation is urgent.

4. What the Court Cares About

Family court in Florida is focused on one thing: the best interest of the child. That includes stability, safety, emotional connection, and maintaining healthy relationships with both parents.

Just because one parent gave birth to a child does not give them more rights—especially when both names are on the birth certificate and the marriage was legal at the time of birth.

5. Take Action Early

If you're in this situation, it's important to act fast—but not impulsively. Speak with a family law attorney who understands how same-sex parental rights work in Florida. The court system is evolving, but you need to make sure your rights (and your child's well-being) are protected.

At Family Matters Law Group, we've walked families through these issues with clarity, confidence, and compassion. We don't play games—and we don't let our clients get railroaded just because the law is misunderstood.

Bottom line: Birth doesn't equal more rights. A marriage makes both parents legal parents. And if one parent starts making moves without your consent, you do not have to sit by and let it happen.

Want help understanding your rights as a co-parent during a divorce?

Contact Family Matters Law Group today—or check out our DIY Legal Education Group for free resources you can trust.