TAMPA, Fla – A same-sex couple are fighting for parental rights in a one-of-a-kind custody battle that takes place in the Tampa Bay area.
On January 27, 2020, a baby boy was born. He weighed 7 pounds and 1 ounce. Jennifer Salas cut the umbilical cord.
“I am a mother of two,” she said. “I know what it’s like to be a mother, I feel like I gave birth to her.”
It was his wife, Ashley Brito, who gave birth. Salas said she inseminated her at home – a family friend was the donor.
The couple married legally in 2019 and Salas’ name is listed under ‘parent information’ along with Brito’s on the original birth certificate. Photos of the couple, as well as Salas’ two daughters, show happy milestones. But, in recent months, Salas has said she has been forced to live without her son.
“It’s not life. My heart is broken. Everywhere I go, wherever I take my daughters, he’s not there, “she said.” It’s like a piece of me is missing. My life is not complete.
Salas admits there were issues in the marriage and she decided she wanted to end it.
“She is upset. She is hurt. I left her. I was no longer happy and everything that happened between her and me has absolutely nothing to do with the baby, ”said Salas.
After that she said Brito grabbed her things and their child and left. Weeks later, she found out that her name had been removed from the birth certificate and that the biological father, Angel Rivera, was on the parents’ list of information.
“They played pretend with me to make me think he was my baby and then she said she changed her mind and changed her mind,” she said.
Salas is now working with Robert Angstadt, a Tampa Divorce attorney, who handled his pro bono custody case.
“There comes these questions of good why didn’t she pass? And my answer to that would be, why does she have to adopt? A couple of the opposite sex is not required to adopt their own child, “he said.” The idea is absurd.
He filed a motion to quash the judge’s order granting the biological father parental rights. It also restores the rights of Salas. The judge agreed in an emergency hearing in September.
“This is a decision based on facts brought to the attention of the court. The Court therefore sets aside its own final judgment, ”said Judge Lindsay M. Alvarez.
Angstadt said Brito and Rivera were behind Salas’s back. He said Salas never received a notification at the final hearing that removed her from the birth certificate, which is why he is considering proving that they committed fraud in the eyes of the court.
“If it was a heterosexual marriage, we wouldn’t be here today. This case would never have happened, ”he said. “A child born into a marriage perceives that he is a legitimate child for both husband and wife. Period.”
ABC Action News reached out to Brito and Rivera to ask them to hear their side of the story and both told us over the phone that we had to go through their lawyers. We contacted the lawyers but received no response.
But, in court records, Rivera said that “although it was determined that the child was conceived by artificial insemination, according to Florida law, 742.11 both husband and wife consented in writing artificial or in vitro insemination for the child born in marriage to be presumed to be the child of a husband and a wife. Neither the Respondent nor his wife Jennifer Salas consented in writing to the artificial insemination. In addition, there is no agreement that the petitioner was a donor. “
They also both stated: “There is no statute or case law which requires notice to the respondent’s same sex wife.
And while Angstadt admits there is no case law, the Supreme Court ruling legalizing same-sex marriage was clear on one thing: “Children of same-sex marriage are those who have the same meaning of unity, community and weddings have. “
“When the government decides to take something away from you, whether it’s life, liberty, or property, or whatever, and the courts have certainly said that custody matters; you need to have an opinion and a hearing before an impartial decision is made, “said Brendan Beery, professor of constitutional law at Cooley Law School.” So something is seriously a mess in the situation. “
Beery said the Supreme Court had ruled on a case with an opposite-sex couple where the non-biological father had obtained parental rights.
“The Supreme Court has made it clear that the constitutionally protected interest or constitutionally protected unit is the family unit. It is not the biological relationship,” he said. “It was written by Judge Scalia, who probably wouldn’t have planned to use it that way.”
But he said the Supreme Court was very different from 2015 when it legalized same-sex marriage and said clarifying the law could be difficult.
“I wouldn’t put money on this tribunal by being sympathetic to the plate of same-sex couples, unfortunately,” he said.
Judge Alvarez officially said on Thursday that she had not ruled on the fraud or not. The case is essentially new and will head towards a trial where one of the following three things could happen – Rivera fails to establish paternity, Salas is removed from the birth certificate, or all three get some sort of custody that , according to Angstadt, never happened.
“I don’t believe blood makes you a family. I believe that time, care and love make you a family. The time you spend with an individual, ”said Salas.
It’s a dedication that this mom will not give up.
“I’m not settling in. I’m going all the way,” she said.