TAMPA, Fla — A same-sex couple is battling over parental rights in a first-of-its-kind custody battle playing out in the Tampa Bay area.
On January 27th, 2020, a baby boy was born. He weighed 7 lbs and 1 oz. Jennifer Salas cut the umbilical cord.
“I am a mother of two," she said. "I know what it feels like to be a mother, I feel like I birthed him.”
It was her wife, Ashley Brito, who gave birth. Salas said she inseminated her at home — a family friend was the donor.
The couple legally married in 2019 and Salas’ name is listed under the “parent’s information” along with Brito’s on the original birth certificate. Pictures of the couple, along with Salas’ two daughters, show happy milestones. But, for the last several months, Salas said she’s been forced to live without her son.
“It’s not life. I’m heartbroken. Everywhere I go, everywhere I take my girls, he’s not there," she said. "It’s like a piece of me is missing. My life is not complete.”
Salas admits there was trouble in the marriage and she decided she wanted to end it.
“She’s upset. She’s hurt. I left her. I was no longer happy and whatever went on between me and her has absolutely nothing to do with the baby," Salas said.
After that, she said Brito grabbed her things and their child and left. Weeks later she discovered her name was taken off the birth certificate and the biological father, Angel Rivera, was listed under the parent’s information.
“They played make-believe with me to make me believe that he was my baby and then she said she had a change of heart and changed her mind," she said.
Salas now works with Robert Angstadt, a Tampa Divorce lawyer, who took her custody case pro bono.
“There comes these questions of well why didn’t she adopt? And my answer to that would be, why does she have to adopt? An opposite-sex couple doesn’t have to adopt their own child," he said. "The idea is preposterous.”
He filed a motion to throw out the judge's order that granted the biological father parental right. It also restores Salas’ rights. The judge agreed during an emergency hearing in September.
“This is a ruling based upon facts brought to the court's attention. So the Court is vacating its own final judgment," said Judge Lindsay M. Alvarez.
Angstadt said Brito and Rivera went behind Salas’ back. He said Salas was never served a notice on the final hearing that removed her from the birth certificate which is why he plans to prove they committed fraud in the court's eyes.
“If this were an opposite-sex marriage we would not be here today. This case would never of happened," he said. "A child born in a marriage has a perception of being a legitimate child to both husband and wife. Period.”
ABC Action News reached out to Brito and Rivera asking to hear their side of the story and both told us over the phone we'd have to go through their lawyers. We reached out to the lawyers but received no response.
But, in court filings, Rivera said, "even if the child was determined to be conceived by artificial insemination, pursuant to Florida law, 742.11 both husband and wife have consent in writing to the artificial or vitro insemination for the child born within wedlock to be presumed to be the child of a husband and wife. The respondent nor her wife Jennifer Salas consented in writing to artificial insemination. Furthermore, no agreement exist that the petitioner was a donor."
They also both said, “There is no status or case law that requires notice to the Respondent's same-sex wife.”
And while Angstadt admits there is no case law, the Supreme Court’s ruling legalizing same-sex marriage was clear about one thing, “Children from same-sex marriage is what have the same sense of unity and community and belonging that children from opposite-sex marriages have."
“When the government moves to take away something from you, whether it’s life, liberty, or property, or whatever the case may be and certainly courts have said custody counts; you have to have notice and hearing before an impartial decision is made," said Brendan Beery, a Professor of Constitutional law at Cooley Law School ."So, something is seriously a mess in the situation.”
Beery said the Supreme Court ruled on a case with an opposite-sex couple where the non-biological dad got parental rights.
"The Supreme Court made it very clear that the constitutionally protected interest or a constitutionally protected unit is the family unit. It’s not the biological relationship" he said. "That was actually authored by Justice Scalia, who probably would not have foreseen using it in this way."
But he said the Supreme Court looks very different from 2015 when it legalized same-sex marriage and he said clarifying the law may be difficult.
“I wouldn’t put any money on this court being sympathetic to the plate of same-sex couples, unfortunately," he said.
Thursday, Judge Alvarez said on the record she hasn’t made a judgment on whether fraud was committed. The case is essentially new and will head to trial where one of three things could happen — Rivera does not establish paternity, Salas is deleted on the birth certificate, or somehow all three get some sort of custody which Angstadt said hasn’t ever happened.
"I don't believe blood makes you family. I believe that time, care, and love make you family. The time you put into an individual," said Salas.
It's a devotion this mom won't give up on.
"I'm not settling. I'm going all the way through," she said.
