The law moves on a funny timeline. It can make rapid, sweeping changes. In 2015, the Supreme Court ruled that same-sex marriage is constitutional, putting the law into immediate effect. At the same time, states still struggle to keep up with this change. A good amount of family law is based on holdovers from traditional models, and it can be difficult for courts to keep up with modern dynamics.
Knowing this, it can be challenging to know exactly what your parental rights are in a same-sex marriage. Do the parent’s genders matter? If so, how much? In this article, we will examine some of the legal challenges of same-sex couples, attempting to clarify how gender can affect your rights.
Gender and Stepparents
In many situations, a same-sex spouse will function as a stepparent. If the child has two legal parents, the sex of either parent’s spouse is irrelevant. When you are raising a child as a stepparent, your rights are limited to that role. You can be included as an emergency contact, drop the kids off and pick them up from school, and so on. Only legal parents can make major decisions, according to their parenting plan.
The same is true for adoption. When a child has two legally recognized parents, you cannot make the child your own. To adopt, the other parent must give up their rights or have them revoked by the court.
Paternity and Same-Sex Couples
Gender is closely connected to fatherhood, and many paternity laws stem from traditional thinking. When a woman has a child, there is no question that she is the mother. (Of course, there are separate issues around surrogacy, but that’s a topic for another time.) Paternity, the legal term for a child’s father, becomes more nebulous.
In most states, when a pregnant woman is married to a man, that man can be instantly granted paternity when the child is born. If the biological father wants to claim paternity, he must do so at the birth or file for it later. Lesbian couples are not given this luxury. A pregnant woman’s wife does not automatically receive legal motherhood when the child is born. To be a full parent, she must adopt.
Complications arise if the biological father decides to claim paternity. Fortunately, a paternity claim can be denied. If the court believes that granting paternity is not in the child’s best interests, it can refuse. To block a paternity claim, you need a lawyer to argue that the mother’s wife is better suited as a legal parent.
Paternity can similarly affect male/male couples, but the situation is even more complex.
A man impregnates a woman, then marries another man. Parenthood can go several ways at this point.
- The mother can retain her motherhood, and the father can claim paternity. This leaves his husband with only stepparents’ rights.
- The mother can give up her parenthood, leaving the father as the only legal parent. His husband, then, could adopt and be the child’s other father.
- The mother’s husband could claim paternity. This forces the biological father to fight for his parental rights. He must file the paperwork, submit to blood tests, and so on. If the biological father is granted paternity, his husband may act as a stepparent.
Consult a Lawyer
Family law is complicated, even in the most traditional, heterosexual, monogamous situations. If you have questions about your rights as a parent in a same-sex relationship, you need the guidance of a good attorney. When you need to battle for your parental rights, you cannot do it alone. A legal professional can help you navigate the red tape. They can anticipate the traps and loopholes, and help you work around them.
If you need assistance gaining your rights in paternity or adoption, we are here to help. For a consultation, fill out our online contact form, or call (949) 565-4158.