Parental Rights of Same Sex Couples During Divorce
In June 2015, the Supreme Court determined that same-sex couples in all states have the right to marry. Same-sex couples with children face unique issues in terms of parentage. If your same-sex marriage is now ending in divorce and you have children together, your divorce settlement will need to include custody, parenting time, and child support. If your parental rights are not secure, you may have difficulty getting custody or parenting time after a divorce. These legalities are extremely complex, and it is important to talk to an attorney who will help you enforce your rights and obtain the access to your children that you desire.
Here are some of the scenarios that may face same-sex couples:
Children Born During Marriage Using Sperm Donor
In a same-sex marriage where one spouse became pregnant through a sperm donor and the child was born during the marriage, both spouses are legal parents. Sometimes the non-biological parent will take the extra step of what is called a “confirmatory adoption.” While the non-biological parent is already considered the full legal parent through the marriage, a confirmatory adoption simply affirms those rights. Without the confirmatory adoption, in a contentious divorce situation, the biological mother may claim she always intended to be the “sole parent.” If you are the non-biological mother and find yourself in this situation, an attorney can assist you to see if there are other legal doctrines that could support your parental status.
Further complexities exist if a same-sex married couple uses a known sperm donor rather than an anonymous donor via a sperm bank. The known donor could try to establish paternity, custody, and parenting time rights. The legal parents may need help from an attorney to enforce the donor contract, if there is one.
Children Born Before Marriage Using Sperm Donor
If a female married couple had a child with the help of a sperm donor before they were able to get married, the parental rights of the non-biological parent may have been established through a second-parent adoption. Or, after they got married, the non-biological parent may have gotten a stepparent adoption to establish her rights. In either case, the non-biological parent’s rights would be secure.
If there was no second-parent or stepparent adoption, the non-biological mother does not automatically have parental rights to the child. If you are in this situation and you are getting divorced, you may still be able to obtain fair custody and parenting time with the assistance of a knowledgeable same-sex divorce attorney.
Children Born to Surrogate Mother During Marriage
If a couple used a surrogate to have a child during their marriage, the non-biological parent(s) likely completed an adoption to become a legal parent. Adoption secures a non-biological parent’s rights. Before the adoption, the surrogate generally gives up her parental rights. If the surrogate is married, her spouse would also need to terminate his parental rights.
Adoption of a Child Biologically Unrelated to Either Same-Sex Spouse
If you and your spouse both adopted the child during your marriage, parentage will not be an issue in your divorce.
If on the other hand, one spouse obtained a single-parent adoption before the marriage, the other spouse would have had to obtain a stepparent adoption after the marriage to establish his or her parental rights. Without a stepparent adoption, legal parental rights are not automatic. If you are in this situation and are getting a divorce, you may want to see if you can reach an agreement about custody and parenting time through mediation. An experienced same-sex divorce attorney can help.
The Equitable Parent Doctrine in Same Sex Divorces
The Equitable Parent Doctrine was established to fairly address the issue of the non-biological parent who did not secure parental rights through an adoption. An “equitable parent” is a legal parent with the same rights and responsibilities that belong to a biological parent. A judge could determine that the non-biological parent would qualify under the Equitable Parent Doctrine if:
- The spouse and the child both acknowledge a parent-child relationship;
- The spouse wants parental rights; and
- The spouse is willing to take on the responsibility of paying support.
However, thus far, Michigan courts have only applied the equitable parent doctrine to married couples. It remains to see if and when this doctrine will be applied to same sex divorce
If you have children and are getting a same-sex divorce, it is important to discuss your options with an experienced attorney who understands the various parental rights of same-sex couples.