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Castellat v. Pereira

Florida Court of Appeals, Third District

August 16, 2017

Vivian De Los Milagros Castellat, Appellant,
v.
Gisela Lissette Pereira, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-4466 Amy Steele Donner, Judge.

          The Carlyle Appellate Law Firm and Christopher V. Carlyle (The Villages), for appellant.

          The Perez Matos Law Firm and Cecilia Perez-Matos (Delray Beach), for appellee.

          Before LOGUE, SCALES and LUCK, JJ.

          PER CURIAM.

         Affirmed. See Russell v. Pasik, 178 So.3d 55 (Fla. 2d DCA 2015); Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006).

          SCALES and LUCK, JJ., concur.

          LOGUE, J, concurring.

         This case involves an area of law - regarding how advances in reproductive technology impact the definition of the modern family - which is struggling to catch up with and reflect the rapid changes taking place in society. In this case, a same-sex couple arranged to have a child together. When the couple separated, the birth mother blocked all contact between the child and the former partner. The former partner filed a petition in the lower court to establish her parental rights regarding the child, including visitation. The case presents the issue of whether the birth mother's constitutional right to privacy protects her decision to sever the child's ties with her former partner when the former partner is not the biological or legal parent of the child.

         I. BACKGROUND

         In reviewing a motion to dismiss, the truth of the allegations are assumed. See Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) ("In ruling on a motion to dismiss, all well-pled facts in the complaint are accepted as true . . . ."). The Appellant, Vivian de los Milagros Castellat, filed the petition in the court below seeking to establish parental rights. For ten years she was the domestic partner of the Appellee, Gisela Lissette Pereira, the birth mother of the child who was the subject of the petition. During that time, the parties presented themselves as a married couple, but never actually wed.[1] Ms. De los Milagros Castellat, whom we will refer to as the "former partner, " and the birth mother utilized assisted reproductive technology to have a child. They agreed Pereira, the Appellee, would be the birth mother.

         In 2009, the birth mother gave birth to twins: a boy and a girl who were born prematurely. The boy survived only two days. The girl lived but continued to have special needs. Both children were given the former partner's surname, but the birth mother alone was listed as the mother on the birth certificates.

         The parties raised the child together for approximately four years. The parties and the child celebrated holidays together. Both the birth mother and the former partner took the child to her many doctor appointments, which included physical therapy, speech therapy, and occupational therapy. For the duration of their time together with the child, the parties lived in a home that was jointly owned by the birth mother and the former partner. The parties twice ...


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