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Parental Rights in a Same-Sex Marriage

The Supreme Court ruled in favor of same-sex marriage in 2015, but for many, the law still feels “new.” It hasn’t had many opportunities to be challenged or refined, so many same-sex couples may still be confused about their rights.

It can be particularly difficult to understand parental rights. Many of our laws about parents are focused on the biological, and they assume there are only two parents: a man and a woman. These laws have been in place for hundreds of years, adapting and adjusting along with society.

This article is here to help clear up any confusion you may have as a same-sex couple raising children together.

Maternity in a Woman/Woman Marriage

The term for legal motherhood is “maternity.” When a baby is born, maternity is never in question. It’s easy to determine who is the child’s mother. In some cases, even surrogate mothers can gain maternity, despite prior arrangements. Mothers can also gain legal maternity through adoption.

Let’s say that Sarah is married to Jane. Before the two met, Sarah was already carrying a baby. Sarah delivers the baby after the wedding, giving her automatic maternity. If Jane wants full, legal motherhood over the baby, she must adopt.

However, this situation could present a wrinkle. Jim, the baby’s biological father, can file for his legal fatherhood. When a child already has two legal parents, the non-biological, same-sex spouse can act as a stepparent.

Paternity in a Man/Man Marriage

Just as legal motherhood is called “maternity,” legal fatherhood is called “paternity.” In general, paternity is more complicated than maternity.

Whenever a married woman has a baby, her husband can sign the birth certificate, regardless of whether he is the biological father. A biological father in this situation must petition and fight for his paternity. This includes proving that his involvement is in the child’s best interest.

Paternity in a same-sex marriage operates much the same as maternity. If a child has no legal mother, two men could adopt the child together. A child may have only one legal father and no other parent, allowing that father’s husband to adopt.

Once again, a child may already have two legal parents. This leaves the husband, who is not a legal parent, the option to be the child’s stepparent.

Tri-Parenting in California

Since 2013, the state has allowed special cases where a child can have more than two legal parents. The process is complicated, and courts tend to look at each scenario individually.

The state must determine that:

  • Giving all three adults parental rights is in the child’s best interests.
  • It will be detrimental to the child if all three parents do not have legal parenthood.

It takes a good attorney to help you build this case. They must prove almost opposite claims. On one hand, they’re showing how good the arrangement is. On the other, they’re showing how bad things will get if the arrangement falls apart.

Other factors can complicate the issue. For instance, the court will consider the age of the child. If the child is a newborn, it will be much easier to make your case. You can show, for example, that the mother is married to another woman, and the father wants to be involved.

If the child is older, however, the court may be more skeptical. Imagine unmarried parents who have a 13-year-old, and one of them marries a new partner of the same sex. Convincing the court that this third party should have full parental rights will be an uphill battle, and it will require the services of a highly competent lawyer.

Singleton Smith Law Offices, Inc. is here to answer any questions or concerns you have about your parental rights. For a free consultation, call us today at (951) 779-1610, or contact us online.