Child custody can be an incredibly emotional and contentious subject under any circumstance, and it is important for parents to understand their rights to child custody and visitation during a divorce. In California, same-sex couples have all of the same rights to child custody and visitation as opposite-sex couples, meaning that each spouse has equal rights to child custody and visitation under the law, all else equal. However, this premise requires an oversimplified view of the world. Unfortunately, the reality is that same-sex couples often face a great deal of additional complications in child custody and visitation matters, such as biological parentage, as a knock-on effect of their sexual orientations. Below, this article will delve into key issues in child custody and visitation matters involving same-sex couples.
Parentage In Same-Sex Marriages
One of the primary issues in child custody battles is parentage. In child custody battles involving opposite-sex couples, parentage is often taken for granted, or the issue may boil down to a simple paternity test. In the context of same-sex couples, however, parentage is fundamentally different, since no more than one of the partners can be a biological parent. The remainder of this article will delve into some of the many issues surrounding parentage for same-sex couples.
Why It Is Necessary to Establish Parentage
“Establishing parentage” means obtaining a court order declaring which individuals are the child’s legal parents. Establishing parentage is often the first step in resolving any disputes over child custody, visitation rights, child support, and more since courts generally will not issue a decision in these matters until it identifies legal parentage. Once legal parentage is established, the legal parents will be able to request child custody or visitation rights, and they may also be responsible for child support and other costs of child care.
Related: What is Child Express Preference? | Child Custody California
How to Establish Parentage In Child Custody Cases
There are many ways to establish legal parentage. Among same-sex couples, legal parentage is especially dependent on the particular circumstances.
Ultimately, legal parentage turns on whether the couple intended for one or both of the individuals to have legal parentage. For example, if the couple is married when one of them becomes pregnant or when the child is born, there is a powerful presumption that each person intended to co-parent the child. However, what happens if the couple was not married? Where one of the individuals is the biological parent, the court will often require the other person to establish that 1. both individuals intended for that person to be a parent and 2. That person did, in fact, behave as a parent. Where the child was adopted and neither individual is a biological parent, the court might require each person to establish that (1) both individuals intended for each person to be a parent and each person did, in fact, behave as a parent.
F.A.Q.s:
Q: To what extent does a same-sex couple need to worry about discrimination in resolving their child custody matters?
A: Strictly speaking, judges are prohibited from factoring in sexual orientation when determining the outcome of a child custody matter. However, this rule is not always reflected in practice. A bigoted judge may demonstrate bias that favors a biological parent regardless of the other circumstances of the case, or their biases may otherwise influence the ultimate resolution. This dynamic can result in complexities that produce overall harm to the child’s development and to the relationships of everyone involved. Therefore, it is important that each parent obtains proper legal representation that can help them protect their rights. Click here to contact Pride Legal for further assistance.
Q: What about the other biological parent?
A: When resolving parentage concerns among a same-sex couple, it is important to note that biological parentage remains relevant. Where the child was born through a previous, heterosexual relationship, through in-vitro fertilization, etc., the other biological parent likely retains certain rights and responsibilities that are relevant to the same-sex couple’s dispute. For example, the California Supreme Court determined that biological parents cannot limit their rights to child support by contract. This is often relevant to cases involving in-vitro fertilization, where parents sometimes incorrectly believe they can absolve liability for child support by surrendering any rights to parental involvement.
Contact Pride Legal
If you or a loved one require assistance with child custody or visitation, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
