Russell v. Pasik
2015 Fla. App. LEXIS 15177
Fla. Dist. Ct. App.2015Background
- Russell and Pasik were long-term same-sex partners who agreed to start a family; donor sperm was purchased and both women underwent artificial insemination.
- Two children at issue were carried to term by Russell (born 2006 and 2008); Pasik carried two other half-siblings. All four children used both women’s surnames and were raised jointly until the relationship ended in April 2011.
- After continued visitation for ~2 years, Russell stopped allowing Pasik access to the children beginning November 2013.
- Pasik filed a petition for timesharing asserting she was a “de facto” or “psychological” parent; Russell moved to dismiss for lack of standing.
- The trial court denied Russell’s motion to dismiss, finding the petition’s “unusual facts” stated a cause of action; Russell sought certiorari review.
Issues
| Issue | Plaintiff's Argument (Pasik) | Defendant's Argument (Russell) | Held |
|---|---|---|---|
| Whether a nonbiological, nonlegal caretaker ("de facto/psychological" parent) has standing under Fla. timesharing/visitation law | Pasik: her sustained parental role created de facto/psychological parent status entitling her to timesharing and due-process protection | Russell: only legal or biological parents have standing under §61.13 and controlling precedent; Pasik lacks statutory or constitutional parental status | Court: Denied — nonparents (psychological/de facto) lack standing; trial court’s denial of dismissal departed from law |
| Whether allowing the case to proceed causes irreparable constitutional harm justifying certiorari | Pasik: her due-process parental interest is infringed by denial of visitation | Russell: continuation of proceedings infringes mother’s constitutional privacy rights in childrearing | Court: Russell showed interference with constitutional parental privacy; certiorari jurisdiction proper |
| Whether Russell waived her privacy right by inviting Pasik into childrearing | Pasik: Russell invited joint parenting, so any privacy objection waived | Russell: no waiver alleged/found; waiver of constitutional rights must be clearly established | Court: Not established on pleadings; waiver insufficient to overcome standing defect |
| Whether courts should expand parental definition absent legislative action | Pasik: courts should recognize de facto/psychological parent claims given family realities | Russell: expansion infringes constitutional parental rights and must be legislative | Court: Policy change belongs to legislature; courts will not expand parental definition here |
Key Cases Cited
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 (Fla. 2004) (certiorari standard elements)
- Belair v. Drew, 770 So.2d 1164 (Fla. 2000) (parental privacy affected by continuance of visitation proceedings)
- Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998) (constitutional right of parents to limit third-party visitation)
- Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006) (§61.13 applies to parents; nonparents lack statutory right)
- Kazmierazak v. Query, 736 So.2d 106 (Fla. 4th DCA 1999) (reconsidering de facto/psychological parent holdings post-Von Eiff)
- O'Dell v. O'Dell, 629 So.2d 891 (Fla. 2d DCA 1993) (nonparents not entitled to visitation under §61.13)
- D.M.T. v. T.M.H., 129 So.3d 320 (Fla. 2013) (biological connection gives rise to inchoate parental right)
- In re Adoption of Baby E.A.W., 658 So.2d 961 (Fla. 1995) (assuming parental responsibilities can develop constitutional rights for a parent)