BROOKLYN, New York. Before same-sex marriage became the law of the land, many same-sex couples remained unmarried, but chose to have children together. While some couples chose to get married once gay marriage was legalized, not all did. Some couples who never married, but have children, can find themselves facing complex child custody cases should they choose to split. Given that same sex couples now have the right to marry and the right to adopt children, the courts tend to rule unfavorably on cases where a parent with no biological connection to a child, or marriage with the other parent, seeks custody of the child.
The Legal Intelligencer recently reported on a case where the Pennsylvania Supreme Court determined that a former spouse in a same sex partnership had no rights to her former partner’s biological child. Though the couple had been in a relationship when the woman was artificially inseminated, the courts found that the non-biological adult in the relationship had no parental rights to the child because the child was never officially adopted. Even though the other woman explained that same sex marriage and same-sex parental adoption wasn’t legal in her state when the child was conceived and born, the courts did not favor her case.
What does this mean for same-sex couples? For one, it may mean that if you want to protect your parental rights, you may need to formally adopt your child, especially if your child was born and conceived before gay marriage became the law of the land. Secondly, it means that if you and your partner are splitting, you could potentially run into a complex custody battle if you have not adopted your child, and if the child is not biologically yours.
The case also highlights issues that can arise when couples have children through artificial insemination. For the father to have rights, if the couple is unmarried, the father may need to formally adopt the child. Merely living together as a family unit may not be sufficient for the court to rule that you should have child custody rights. As more couples choose to cohabitate rather than getting married, this is an area of family law that may get more attention in coming years.
According to the American Bar Association, when it comes to same sex marriage, parental rights are not as simply construed as they are for heterosexual couples. One parent alone will likely be the biological parent. In several states, in order for the non-biological parent to be recognized as a parent, this parent must adopt the child.
Do you have questions of family law as it pertains to same sex marriage? Are you facing a custody dispute with your former partner? The Elliot Green Law Offices in Brooklyn, New York are divorce lawyers who work closely with families to help them find a child custody resolution that will be in the best interests of their children. If you have questions about what your next steps should be if you’re going through a divorce or if you have questions about child custody, reach out to our family lawyers at https://elliotgreenlaw.com/ to learn more.
Elliot Green Law Offices
32 Court Street, Suite 404
Brooklyn, NY 11201
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