Russell v. Pasik
178 So. 3d 55
| Fla. Dist. Ct. App. | 2015Background
- Russell and Pasik, a same-sex couple, decided to have children using anonymous donor sperm; Pasik paid for inseminations and both women carried children. Two children at issue were born to Russell (2006, 2008); Pasik also bore two half-siblings.
- The four children were raised jointly until the relationship ended in April 2011; Pasik continued visitation and parental involvement until November 2013, when Russell denied visitation.
- Pasik filed a petition for timesharing claiming status as a "de facto" or "psychological" parent; Russell moved to dismiss for lack of standing. The trial court denied the motion, finding the petition alleged unusual facts sufficient to state a cause of action.
- Russell sought certiorari review of the denial of her motion to dismiss, arguing the trial court departed from the essential requirements of law by allowing the nonparent claim to proceed.
- The appellate court found certiorari jurisdiction proper because continuing the suit implicates Russell’s constitutional privacy right as a parent and thus causes irreparable harm not correctable on appeal.
- On the merits, the court held Florida law (statutory and precedent) limits parental rights under section 61.13 to biological or legal parents; nonparents claiming de facto or psychological parent status cannot establish standing to seek timesharing absent a statutory or constitutional basis. The writ was granted and the trial court’s order quashed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek timesharing | Pasik: as a de facto/psychological parent she has standing to seek visitation | Russell: Pasik is a nonparent under Florida law and lacks statutory/constitutional standing | Held: Nonparents claiming de facto/psychological status lack standing; petition must be dismissed |
| Certiorari jurisdiction to review denial of motion to dismiss | Pasik: interlocutory denial is not certiorari-worthy | Russell: denial infringes her parental privacy right, causing irreparable harm | Held: Certiorari proper because suit implicates fundamental parental privacy right and cannot be remedied on appeal |
| Applicability of constitutional parental rights to nonbiological caregivers | Pasik: assumed parental role creates constitutional interest | Russell: constitutional protection arises from biological/legal parentage, not mere caregiving | Held: Constitutional protection flows from biological/legal parent relationship; nonparents lack clear constitutional right here (D.M.T. distinguished) |
| Waiver or equitable doctrines to confer rights | Pasik: Russell invited joint parenting and thus waived privacy rights | Russell: No waiver; waiver of constitutional privacy must be clearly established | Held: Waiver not shown; even if sympathies exist, expansion of parental status must be by legislature, not courts |
Key Cases Cited
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004) (certiorari standard: departure from essential requirements plus irreparable harm and inability to correct on appeal)
- Belair v. Drew, 770 So. 2d 1164 (Fla. 2000) (continuance of visitation proceedings can infringe parents’ constitutional privacy rights)
- Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998) (parental right to limit third-party visitation is a protected privacy interest)
- In re Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995) (assumption of parental responsibilities can give rise to parental rights in some contexts)
- D.M.T. v. T.M.H., 129 So. 3d 320 (Fla. 2013) (biological connection may give rise to an inchoate parental right; distinguishes nonparent claims)
- Kazmierazak v. Query, 736 So. 2d 106 (Fla. 4th DCA 1999) (earlier cases recognizing psychological/de facto parent claims must be read in light of supreme court privacy jurisprudence)