Getting What Is Rightfully Yours

The Challenges Of Establishing Parentage In A Same-Sex Relationship

4 December 2015

Estelle Mathieu

The legalization of gay marriage means many same-sex couples will, unfortunately, find themselves in divorce court. Legal separation can be troublesome for same-sex couples because the laws were designed around the needs of and issues specific to heterosexual couples. Case in point, establishing the parentage of children in same-sex marriages can be problematic and lead to a denial of parental rights and support for at least one spouse if not handled correctly. Here's what you need to know to ensure you maintain legal access to your kids or get child support after you divorce your spouse.

How the Law Establishes Parentage

To fully understand the problems you may face during divorce when it comes to child custody and support issues, it's important to know how states establish parentage. In general, states will view children as the legal responsibility of their biological parents. While this works well in heterosexual relationships, it can be disastrous in same-sex couplings because children are often produced with the help of donors and/or surrogates whose only function is to provide genetic material or gestational space.

Oftentimes this means that the parent with biological ties to the child will be seen as the only one with the legal right to him or her. This can result in the non-biological parent being denied visitation or custody, the biological parent being denied child support from his or her spouse, and/or the donor or surrogate being held responsible for financially supporting the child.

For instance, a Kansas sperm donor was made to pay child support to a lesbian mother after she and her spouse separated and the woman applied for public assistance. Although the man signed away his parental rights, the state claims he was still responsible for paying the money because the women performed the artificial insemination at home rather than at a physician's office as required by law.

Children Born in the Marriage

In heterosexual marriages, the man to whom the woman is married is often automatically presumed to be the father of the child. Even if the man proves by DNA testing that he is not, in fact, the child's biological father, he may still be required to pay child support because he accepted and treated the child as his own. In some states, this law is extended to children born during same-sex marriages as well. In these cases, the non-biological parents may be considered the children's legal parents by adding their names to the kids' birth certificates.

However, the rule typically only benefits lesbian women who get pregnant and give birth to the children in their marriages. Gay men, who have to use surrogates to begat children, are typically left in a situation where the man who supplied the sperm gets parental rights but the non-biological father is left with no claim to the child whatsoever.

Establishing Parentage

The easiest way for non-biological parents to establish parentage of children in their relationships is to go through second-parent adoption. In addition to establishing the second parent's legal rights to a child, adoption will typically sever the donor or surrogate's parental rights. This can prevent a situation where the donor or surrogate successfully petitions the court for visitation or custody rights as happened to a New Jersey lesbian couple.

If second-parent adoptions aren't available in your state, it may also be possible to establish parentage based on your intent to conceive and raise children with your ex-spouse. For instance, showing that you and your ex discussed having children, picked out the donor or surrogate together, and you financially contributed to the insemination or IVR procedure may be enough to convince a judge that you are a de facto parent. Your relationship with the child will also typically factor into the judge's decision.

Establishing parentage for non-biological children in a same-sex marriage can be very challenging and may require some legal maneuvering. It's essential that you work with a divorce attorney who has knowledge in this area and can help you obtain a fair custody and support outcome.

Share

Search