Although same-sex marriage was nationally recognized in 2015, there are still several vague legal matters to address. It often takes time for society and the rest of the law to catch up to big changes.
Among the many things to address with same-sex marriages, there are still questions about parenting and childbearing. Many parenting laws still operate under traditional, heterosexual models, sometimes leaving same-sex parents out of the equation.
Paternity is the term for legal fatherhood, and maternity is the term for legal motherhood. Paternity can have a particular impact on same-sex parenting. This impact can be good or bad, depending on the circumstances in your family.
In this article, we will explore same-sex marriages and parents, breaking down the way paternity affects each.
Paternity and Lesbian Marriages
A New Baby
When a child is born, its mother is given automatic, legal parenthood, or “maternity.” It’s easy to see why. Unless the mother is carrying a surrogate child, there is no confusion about her being a parent.
Fatherhood, on the other hand, can be harder to rack down. There can be questions about who the child’s biological father is. To further complicate matters, if a woman is married to a man and has a baby, that man is automatically given paternity, regardless of whether he is biologically connected to the child.
The law does not extend this courtesy to lesbian spouses. If a pregnant woman, married to another woman, has a baby, her wife is not automatically granted maternity. For this wife to gain legal parenthood, she must adopt.
Paternity Outside the Marriage
Of course, modern families are far more complicated than traditional ones. A child may already have two legal parents, a mother and a father, even if the mother is married to another woman. In that case, there are far fewer options for the mother’s wife. If the child has two legal parents, the mother’s wife can act only as a stepparent.
Paternity and Gay Marriages
In a marriage between two men, paternity creates even more complications. As we’ve mentioned, the husband of a pregnant woman can be granted automatic paternity, no matter what. If the biological father is outside the marriage, he must work toward gaining his legal fatherhood.
If the pregnant, married mother agrees to the biological father’s paternity without conflict, gaining paternity is fairly painless. In California, both biological parents can sign a Voluntary Declaration of Paternity. Once the form clears, the father has his legal status.
The mother, however, could attempt to block the biological father’s paternity. In this case, the father must fight to gain his parenthood, especially if the mother’s husband already secured paternity.
With an attorney’s help, the father can plead to the courts. This can be a long, arduous process. It may involve blood tests and other forms of proof. Furthermore, the biological father must make a case for his paternity, as blood relation may not be enough. Courts always try to operate in the best interests of children. Even if you conclusively prove that you are the child’s father, the court could rule that the child should remain legally bound to the other man. Fighting this ruling requires an appeal, which is another long, legal process that essentially starts the process over.
How, then, does all this legal red tape affect this biological father’s husband? Regardless of biological sex or orientation, if the child has two legal parents, the father’s husband may serve as a stepparent only.
As you can see, a same-sex parent’s spouse is often relegated to stepparent status. Generally, stepparents have far fewer rights than legal parents. In many states, for instance, stepparents still have no recourse for seeing their stepchildren after a divorce.
Fortunately, this is not the case in California. For the last couple of decades, stepparents have had rights that extend beyond the length of a marriage. If your marriage ends in divorce, and you are a stepparent, you may be granted visitation rights. To gain this privilege, you must prove to the courts that your continued inclusion is best for the child.
Through a complicated legal process called “in loco parentis,” stepparents may also be granted the right to pay child support. This could keep them involved and connected with the child for quite a long time, depending on the child’s age.
Paternity mostly affects same-sex couples when there is another parent outside the marriage. If the child has only one legal parent, that parent’s spouse can file for adoption. Regardless of orientation, adoption gives the spouse full legal parenthood, be it maternity or paternity.
For lesbian couples, adoption may be less complicated. There may be no legal father, making it easier for the mother’s wife to adopt. Sometimes, however, a biological father appears later in the child’s life and fights for his paternity. In such cases, it will be necessary to prove that it is in the child’s best interests to keep the dynamics as they are, maintaining everyone’s current legal status.
For male/male marriages, however, adoption may be impossible. As long as the mother is alive and chooses to keep her legal parenthood, the stepparent may never be able to become a fully recognized parent.
In any case, the parent outside of a same-sex marriage can give up their parental rights. If they do, that gives the stepparent the ability to adopt.
With any form of LGBT+ marriage, it may be necessary to fight to revoke an unfit parent’s legal rights. There may be a parent outside the marriage who refuses to relinquish their rights, but they are otherwise unhealthy for the child. For instance, they could be abusive or neglectful. In scenarios like these, you can plead to have this parent’s rights revoked. If the plea is successful, this opens up the opportunity to adopt, making the parent’s spouse the other legally recognized parent.
Getting Help from an Attorney
As you can see, the issue of full-fledged parenthood can become complicated in an LGBT+ marriage. Simply determining who has which rights can become a quagmire. If you’re concerned about your rights as a parent or stepparent, get help from a qualified legal professional. They can help walk you through your options, and they can find answers to the tough questions.
For help with parental rights, regardless of gender, contact our firm today for a free consultation. You can reach us online or call us at (310) 817-6904.