If you are in a same-sex marriage and you have children, you may or may
not be confronted with challenges in the near future. Fortunately, California
has some of the friendliest same-sex marriage laws in the nation; however,
maneuvering them can be more complicated for same-sex couples than it
is for heterosexual couples, and that’s to be expected for now.
Even though same-sex marriage was legal in California before the U.S. Supreme
Court made gay marriage legal across the nation, the LGBT community in
Los Angeles still jumped for joy when same-sex couples everywhere were
finally able to enjoy the benefits of marriage. In fact, gay and lesbian
parents in California were some of the first to tread new territory in
regards to same-sex marriage and parenting; however, it took some time
for the child custody laws to be brought up-to-date in respect to same-sex divorces.
What California Law Says
If you are not clear on how the law handles same-sex
child custody, we encourage you to continue reading. Much of it has to do with whether
the child was born before or after the marriage, and whether you adopted
him or her. If you adopted a stepchild or if you adopted the child together,
then child custody will be a non-issue.
If adoption does not apply, we need to take a closer look at paternity.
Under California law, paternity means to determine who a child’s
legal parents are. If you and your spouse were both married or in a registered
domestic partnership (after January 1, 2005) when the child was born, the state does not have
any questions about parentage. You would both be considered the child’s
legal parents because the law automatically assumes that two married parties
are a child’s legal parents.
On the other hand, if the child was born and you were not married to your
spouse at the time of the child’s birth, you will have to go to
court to establish parentage. For example, let’s say you’re
in a lesbian relationship and before your then girlfriend got pregnant,
you both decided she would enlist a male friend to help her become pregnant,
and once the pregnancy was successful, you’d both raise the child together.
Suppose the child’s biological father was never involved in her upbringing,
and you were the stay-at-home mother while your girlfriend, the child’s
biological mother worked and supported the family. When your child was
three, you married your long-time girlfriend. Now, your daughter is eight-years-old
and you’re seeking a divorce. You never did adopt your daughter,
so you’re worried about your parental rights.
In the above scenario, you definitely want to go to court and establish
parentage because under the law, you don’t have any legal rights
until you go to court because the child was born before you got married.
Even if your soon-to-be ex-wife seems to be flexible right now –
that can change in the future. Plus, you need to find out:
- Was the biological father’s name placed on the birth certificate?
- Did the biological father terminate his parental rights?
- Will news of your split make the biological father want to come back into
- Does the biological father want to be the child’s legal father?
- Does the biological father desire to be in your daughter’s life?
Until parentage is established, you may not have any enforceable legal
rights towards your child, even if you were a stay-at-home parent for
her entire life! In any case, it’s in your child’s best interests
to be in her life, especially if you’ve been her primary caregiver
all of these years. If your relationship with your daughter were compromised,
it would not be good for her.
Note: In some same-sex divorce cases, the court may decide that a child has
more than two legal parents. For example, in the situation mentioned above,
the court could determine that the biological mother, the biological father,
and the non-biological mother were the child’s legal parents.
Importance of Establishing Parentage
Establishing parentage is critical, whether you’re in a same-sex
or heterosexual relationship. Until parentage is established, the court
cannot issue orders for child custody, child support, or visitation. If
you’re in a same-sex marriage and you weren’t married to your
spouse at the time the mother became pregnant, or when the biological
father’s child was born, you’ll have to establish parentage.
For example, say you’re in a same-sex marriage with a man, and you’ve
both raised your husband’s biological child since he was an infant.
The issue is, you didn’t get married until years after the child
was born. In that case, you’d have to prove to the court that you
both intended to raise the child together and that’s what you’ve
Since the laws on parentage are more complicated in situations where the
same-sex couple was not married at the time of the child’s birth,
it’s important to discuss your child custody case with an experienced
family law attorney. This way, you’ll be able to clear up any ambiguities
and gain the peace of mind you need.
What are the benefits of establishing parentage? Once a man or woman establishes
parentage, he or she will have all of the same rights and responsibilities
as a biological parent, such as:
- The right to request custody of the child.
- The right to request visitation.
The responsibility to pay
- The responsibility to pay half of the childcare costs and half of the uninsured
medical expenses for the child.
As mentioned earlier, in California same-sex divorce child custody cases,
sometimes the state determines that there are more than two parents. Usually,
the state does this when it would be harmful to the child not to legally
recognize a non-biological parent who has played a significant role in
the child’s life.
Need help with a same-sex divorce involving child custody? If so,
contact our firm to meet with one of our caring and compassionate
family law attorneys.