In June 2015, the U.S. Supreme Court handed down a landmark decision in the case of Obergefell v. Hodges. Based on its ruling, same-sex marriages could no longer be denied and the marital privileges afforded to same-sex couples. From that point forward, same-sex couples across the nation would be allowed to get married, with the same rights as other couples. Equal rights were required for same-sex couples both at the state and federal level, and these couples were eligible to seek an annulment or divorce, just like any other married couple.
While this one action established marriage equality, it also left a number of important questions unanswered. How will parenting be established from now on? Will same-sex couples automatically be granted equal custody and visitation rights following a divorce? How can parentage be determined if only one spouse has a biological tie to the child? What does the Obergefell decision really mean for parentage? What will be involved in establishing parentage in California?
Legal Issues for Gay Parents: Protecting Your Parental Rights
When a married couple with a child decides to get a divorce, parentage (or paternity) may be called into question if the parents were unmarried at the time of the child’s birth. Before the biological father will be granted custodial or visitation rights, it may be necessary to legally establish paternity.
In cases involving same-sex couples, and regardless of whether or not the couple is married, the issue of parentage has been a constant source of contention in recent years. As most same-sex couples who want to have children will either adopt, conceive through artificial insemination, use a donor sperm to conceive, or rely on a surrogate, a child from a same-sex marriage will not have a biological connection to both parties. Although this fact shouldn’t result in parentage being called into question for the non-biological, same-sex parent, particularly if he or she played a key role in making the decision to conceive and in raising the child, it has.
Although the Obergefell decision may have successfully addressed marriage equality, the legal issues surrounding gay parental rights is not yet resolved.
Same-Sex Couples Must Protect Themselves and Their Parental Rights by Establishing Parentage
As frightening as it may sound, being married to a same-sex partner does not necessarily give you equal rights as a parent should you later file for an annulment or divorce. If you are not the child’s biological parent, it is important you take action to protect yourself and child by taking action to establish legal parental rights early on.
Surrogacy: The law generally requires couples who use a surrogate mother to be married prior to entering into such an agreement. While surrogacy can be complex, many male same-sex couples who are intending to be parents via surrogacy will be able to seek recognition as the child’s legal parents.
Adoption: When a married couple, same-sex or not, chooses to build their family through adoption, each adoptive partner can be given equal rights. When a female spouse conceives through the use of a sperm donor, the non-biological parent may be able to establish parentage by officially adopting the child as his or her own. In this situation, parental rights would be secured early-on to avoid contentious legal issues should the marriage later end in divorce.\
Gamete donation: For same-sex female couples, in which both parties consent to conception via a gamete donation, Obergefell may now allow them to take advantage of the same legal parentage rules afforded to opposite-sex couples.
In many cases, marriage will be one of the key contributing factors for same-sex couples to be able to establish parentage. Agreeing to co-parent does not necessarily protect a person’s parental rights in the event of a divorce or separation. You need to protect your rights so you can maintain the relationship that you worked so hard to build with your child. A skilled attorney should be able to help to establish parentage, regardless of your marital status.
Legal Assistance Establishing Parentage in California
If you are currently going through a divorce and need legal assistance establishing parentage in California, the attorneys at Dream Law are here to help. Hiring an attorney from our firm to help you legally establish parentage is a critical factor in later being granted custodial or visitation rights in a divorce or separation.
We understand divorce can be difficult, and it is even more so when children are involved. Let us provide you with the legal assistance you need so that can seek the legal parental rights so that the relationship between you and your child can continue to grow. Call now to schedule a confidential consultation with a Pasadena family law attorney.