Who should get primary child custody: birth mother or egg donor?

In a family law case, the first visual that comes to mind is parents, typically the father and mother, of a child, or children, fighting over child custody and parenting time issues. But, what about child custody issues between a gay or lesbian couple who have developed irreconcilable issues?

In an interesting child custody dispute between a former lesbian couple, the Florida Supreme Court may send back the case to a lower court for a potential factual dispute over the informed consent form signed by the genetic mother -- the egg donor. According to the form the genetic mother gave up all rights to her donated egg and resulting offspring.

Before the lesbian couple ended their relationship, the genetic mother's donated egg was fertilized and implanted in the birth mother. A child was conceived in 2004 but the couple split up in 2006. At that time, a trial court awarded sole custody to the birth mother citing a state law which states that genetic donors do not have parental rights. However, at the appellate level, the court disagreed noting that the genetic mother was not a donor as originally intended by the law and stated that the women should share custody.

The birth mother moved out of Florida to Australia without informing the genetic mother with the child and the genetic mother has not seen her child in five years. Given the specifics of this case, the final outcome of the case is unlikely to affect others facing child custody issues.

In child custody issues nothing is more important for the parents than to have their child in their lives. Despite differences the parents have, they should try to set them aside and work in the best interest of their child by working together to draft a fair and mutually agreeable visitation and parenting time schedule. However, when it is impossible for two people to work together on such issues in a civil manner, the court can make a decision for the couple in the best interest of the child.

Source: Miami Herald, "Florida justices hear lesbian custody dispute," Bill Kaczor, Oct. 2, 2012

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