Russell v. Pasik

Decision Date14 October 2015
Docket NumberNo. 2D14–5540.,2D14–5540.
Citation178 So.3d 55
Parties Susan RUSSELL, Petitioner, v. Elizabeth A. PASIK, Respondent.
CourtFlorida District Court of Appeals

Paul F. Grondahl of Paul F. Grondahl, P.A., Bradenton, for Petitioner.

Cristina Alonso and Jessica Zagier Wallace of Carlton Fields Jorden Burt, P.A., Miami; Michael P. Sampson of Carlton Fields Jorden Burt, P.A., Orlando; and Ashley Filimon of Ashley Filimon, P.A., Orlando, for Respondent.

Elliot H. Scherker, Brigid F. Cech Samole, and Jay A. Yagoda of Greenberg Traurig, P.A., Miami, for Amici Curiae Florida's Children First, Florida Youth Shine, University of Miami School of Law Children and Youth Clinic, Professor Naomi R. Cahn, Donor Sibling Registry, and the National Association of Counsel for Children.

Luis E. Insignares, Fort Myers; and Elizabeth Lynn Littrell of Lambda Legal Defense and Education Fund, Atlanta, Georgia, for Amici Curiae Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, Family Equality Council, University of Florida Fredric G. Levin College of Law Center on Children and Families, Nova Southeastern University Law Center Children and Families Law Clinic, and Law Professors Paolo Annino, Brion Blackwelder, Michael J. Dale, Nancy Dowd, Shani M. King, and Barbara Bennett Woodhouse.

VILLANTI, Chief Judge.

Susan Russell petitions this court for a writ of certiorari from the denial of her motion to dismiss Elizabeth A. Pasik's petition for timesharing. Because the trial court departed from the essential requirements of the law, we must grant the petition.

Russell and Pasik entered into a same-sex relationship in April 1998. At some point over the course of that relationship, the parties made the decision to start a family together. To that end, Pasik purchased donor sperm supplied by an anonymous donor with the intent that it would be used to impregnate both Russell and Pasik. Pasik also paid for both women to undergo artificial insemination. The two children who are the subject of Pasik's petition for timesharing were carried to term by Russell and born April 29, 2006, and February 11, 2008, respectively. Pasik herself carried two children to term, both of whom are the biological half-siblings of the children at issue. All four children share the last names of both Russell and Pasik.

The four children were raised by both women jointly as a family unit until the parties ended their relationship in April 2011. For two years following the termination of their relationship, Russell allowed Pasik visitation with her children and Pasik retained an active parental role in their lives, providing financial support and maintaining the children as dependents on her health insurance policy. However, beginning in November 2013, Russell refused Pasik visitation with her children. Pasik petitioned for timesharing with the children, claiming to be their de facto or psychological parent, and Russell moved to dismiss on the basis that Pasik did not have standing to seek visitation rights. At the hearing on the motion, the trial court found that "the unusual facts as set forth in the petition sufficiently set forth a cause of action" and denied Russell's motion. This petition followed.

To be entitled to certiorari relief, Russell must demonstrate "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ). The second and third elements are jurisdictional and thus must be evaluated first. Trucap Grantor Trust 2010–1 v. Pelt, 84 So.3d 369, 371 (Fla. 2d DCA 2012).

Typically, certiorari will not be granted from a denial of a motion to dismiss because there is not a material injury that cannot be corrected on postjudgment appeal. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 354 (Fla.2012) (citing Martin–Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), for the proposition that "an appellate court could not use a writ of certiorari to review an interlocutory order denying a motion to dismiss or strike a claim for punitive damages because the petitioner would have an adequate remedy by way of appeal"). In the present case, however, Russell's claim meets the jurisdictional elements for certiorari. As the mother of the children with whom Pasik seeks timesharing, Russell has a constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time, that the State would necessarily be interfering with by just allowing the case to proceed. See Belair v. Drew, 770 So.2d 1164, 1167 (Fla.2000) (approving of Williams v. Spears, 719 So.2d 1236 (Fla. 1st DCA 1998), which granted certiorari in a case involving grandparent visitation rights because "the parents' constitutional right to privacy was affected ‘by the very continuance’ of the proceedings in the trial court"); Von Eiff v. Azicri, 720 So.2d 510, 516 (Fla.1998) (holding that parents had "a constitutional right of privacy in their decision to limit the grandparents' visitation with their child" that could not be infringed upon by unwarranted governmental interference). The State's interference with a constitutional right—here, the right to privacy—would ipso facto result in an injury that cannot be corrected on postjudgment appeal. See Citizens Prop. Ins. Corp., 104 So.3d at 354 (comparing Belair with Martin–Johnson, Inc. to distinguish "the situation where a party was merely forced to continue with litigation and thus did not suffer ‘irreparable harm’ from those situations where an order violated a party's ‘fundamental rights' and caused harm that could not be later remedied"). As such, we find that this court has jurisdiction. See Belair, 770 So.2d at 1167 ; see also Joseph v. State, 642 So.2d 613 (Fla. 4th DCA 1994) ; Clear Channel Commc'ns, Inc. v. Murray, 636 So.2d 818 (Fla. 1st DCA 1994) ; Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994).

The final element of this court's ability to grant certiorari, requiring a departure from the essential requirements of the law, means "more than simple legal error; rather, it is ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ " Trucap Grantor Trust 2010–1, 84 So.3d at 371 (quoting Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2d DCA 2004) ). If the trial court erroneously interprets or applies a controlling statute, then it violates "clearly established law." See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890–91 (Fla.2003). Florida's rules regarding visitation and timesharing are governed by section 61.13, Florida Statutes (2014). And "[b]y its explicit provisions," section 61.13 applies only to parents' visitation rights and does not extend to nonparents. Wakeman v. Dixon, 921 So.2d 669, 673 (Fla. 1st DCA 2006). Several cases have applied this statute to hold that nonparents are not entitled to visitation. See, e.g., O'Dell v. O'Dell, 629 So.2d 891, 891 (Fla. 2d DCA 1993) ; Wakeman, 921 So.2d at 673 ; Kazmierazak v. Query, 736 So.2d 106, 109 (Fla. 4th DCA 1999) ; Music v. Rachford, 654 So.2d 1234, 1235 (Fla. 1st DCA 1995) ; Meeks v. Garner, 598 So.2d 261, 262 (Fla. 1st DCA 1992). As such, Pasik's standing to petition the court for timesharing is dependent on her being a "parent" within the meaning of the Florida Statutes.

In evaluating whether Pasik is a parent, we first look to the language of her petition for timesharing. "A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues." See Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). In ruling on a motion to dismiss, the trial court must determine whether, assuming all allegations contained within the four corners of the petition are true, the petitioner would be entitled to the requested relief. Meadows Cmty. Ass'n v. Russell–Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006) (quoting Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001) ). In her petition for timesharing, Pasik alleged that she "is not the legal parent of the children," but instead claimed that she "is the ‘de facto’ or ‘psychological’ parent to both of the children." Taking this assertion as true, Pasik's claim that she is entitled to timesharing depends on a finding that her status as a de facto or psychological parent is sufficient to confer standing as a parent to seek visitation.

As explained in the Fourth District's decision in Kazmierazak, prior cases have considered the role of the de facto or psychological parent in a child's life and actually held that the de facto or psychological parent had a right to visitation or custody. 736 So.2d at 108–09 (citing Simmons v. Pinkney, 587 So.2d 522 (Fla. 4th DCA 1991) ; Wills v. Wills, 399 So.2d 1130 (Fla. 4th DCA 1981) ; Heffernan v. Goldman, 256 So.2d 522 (Fla. 4th DCA 1971) ). However, as the court pointed out, these cases "must be reconsidered in light of recent precedent. Since these cases were decided, our supreme court, citing the fundamental and constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents' right to make decisions about their children's welfare without interference by third parties." Id. at 109 (emphasis added) (citing Von Eiff, 720 So.2d at 514–15 ).1 It is this unequivocal distinction between "adoptive or biological parents" and others that Pasik would now have us look past in finding that the latter has the same rights as the former. But the law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents. See, e.g., Von Eiff, 720 So.2d at 514–15 ; Wakeman, 921 So.2d...

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2 books & journal articles
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