Establishing Parental Rights in a Same-Sex Marriage

Establishing Parental Rights in a Same-Sex Marriage

Children need their parents, even after a divorce. That’s why California courts focus so much on doing what is in the child’s best interest when deciding on child support and visitation issues. Another important and basic issue that pops up in many divorces involving children – parental rights. It’s not always an easy situation for the parents or their children. With the rise of legal same-sex marriages, establishing parental rights became a little more challenging for some couples.

Opposite-Sex Couples and Parenthood

Before same-sex marriage became legal, establishing parental rights usually meant proving the father’s identity. This step is usually easy for married couples because the law generally assumes that the mother’s husband is the baby’s father. When there is uncertainty, however, an opposite-sex couple can establish fatherhood through:

  • Testing,
  • Signing a Voluntary Acknowledgment of Paternity,
  • Obtaining a court order.

In the past, same-sex parents sometimes found it difficult for both partners to be accepted as a child’s legal parent.

California Law and Presumed Parents

Generally, one spouse is presumably the parent of the other spouse’s child under the following conditions:

  • He or she was married to the child’s mother when the child was conceived or born.
  • The presumed parent attempted to marry the child’s mother or was engaged in a marriage later deemed invalid when the child was conceived or born.
  • They married the mom after the child was born and agreed to be added to the birth certificate or to support the mom’s child.
  • One spouse treats the other spouse’s child as his or her child.

These legal presumptions apply to all married couples and people who registered a domestic partnership after January 2005. Couples in same-sex marriages have the same right to be a presumed parent under the conditions mentioned above.

Potential Roadblocks to Establishing Parental Rights

In marriages where the spouses are of the same sex, they might become parents through:

  • In vitro fertilization,
  • Using a surrogate mother, or

In the past, the spouse that gave birth to a child was considered the child’s parent. The same-sex partner did not automatically get parental rights. Instead, they would have to adopt the child their partner gave birth to, even though they acted as the child’s parent. Without the right legal framework, partners could be denied access, visitation, or custody to the child they had raised from birth.

Using the assumptions that California law allows, it would appear that same-sex couples would both have parental rights, regardless of the biological origin of their children or whether one gives birth. However, other states and countries may not recognize parenthood given the same set of circumstances.  It may be best to err on the side of caution. After all, you want to make sure your parent-child bond stands up in court if necessary.

Call to Learn More About Establishing Parental Rights in a Same-Sex Marriage.

Establishing parental rights is best done well before a breakup. Most people can save time, money, and some serious angst by ensuring both halves of a same-sex marriage are considered parents of any children born during the marriage.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Font Resize