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 divorce and 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 the picture?
- 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 been doing.
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 child support.
- 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.