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Same Sex Marriage with Biological and Non-Biological Legal Parent's Rights Issues

In recent years, same-sex parents in California have fought for, and won, many rights that couples in other states do not yet enjoy. Things are far from perfect, but strides are being made to ensure that same-sex couples have the same parental rights as opposite-sex couples. Protecting these rights is crucial for both the well-being of the parent involved as well as the child or children in question.

Exploring the rules surrounding parental rights is important for all same-sex couples, regardless of the stage of your relationship. Those who are thinking about becoming parents need to know what rights each partner has before you start to investigate adoption, surrogacy, or artificial insemination. If you or your partner has a child from a former relationship, everyone should understand with perfect clarity what their rights and obligations surrounding that child are. Learning more about same sex marriage with biological and non-biological legal parental rights is also incredibly important if you and your spouse are experiencing a breakdown of the relationship.

Establishing Parentage for Same Sex Marriages

To establish parentage is to obtain an official, government issued document that states who the legal parents of a child are. This is very important for custody, visitation, and support issues. It is also crucial as it determines who has the legal right to information about the child, and who can make medical, legal, and educational decisions regarding the child’s upbringing.

In the state of California, if two individuals are married, the courts typically assume that both spouses are the legal parents. This is true of opposite-sex and same-sex couples. However, if the parents are unmarried at the time of birth, parentage needs to be legally established if both parties want parental rights. Establishing legal parentage for unmarried couples is easy as long as they have registered as domestic partners prior to the birth of the child. In order for the court to determine that you are in a domestic partnership, you and your partner must meet the following requirements:

  • Both partners must file a “Declaration of Domestic Partnership””
  • You must both reside together
  • Neither party can be involved in an active marriage or domestic partnership with another person that has not, or is not currently being, terminated or dissolved
  • You and your domestic partner are not blood relatives and are each 18 years of age or older
  • Each of you have consented to cohabitating in a domestic partnership

Upon the dissolution of a marriage or domestic partnership, each partner has the legal obligation to provide financial support to the child, regardless of the relationship with the other partner. Legal parentage also gives each party rights to physical and legal custody of the child in the event of a relationship termination.

The Rights of a Parent

In California, as well as in most states in the country, only the biological parent has certain rights, unless parentage can be established or unless the couple is married at the time of birth. Parental rights are numerous, and include the right to do the following:

  • Make decisions about the child’s education and religious upbringing
  • Provide or withhold consent for medical procedures
  • Speak with childcare and educational providers about the child’s progress

Once parentage is established, each partner has the right to information about the child’s medical, educational, and physical development, as well as the right to make decisions about their health and well-being. In addition to granting these benefits to the non-biological parent, establishing parentage has numerous advantages for the child. For example, as long as both the biological and non-biological parents are established, the child can access family documents, including medical records. Without establishing parentage, children may not be able to benefit from life insurance policies or health coverage from the non-biological parent. As soon as parentage is established, the child is eligible for coverage, even from a non-biological parent’s employment.

As a parent, one of the biggest concerns you may have is how to take care of your child, even after you are gone. Not everyone anticipates their own passing, which means that you may not have an ironclad will in place. If it is important to you to have your non-biological child automatically become entitled to part of your estate, it is crucial that you establish your parentage now.

If you are married before the child comes into your lives, you have very little to worry about in terms of establishing parentage. It is still a good idea to consult with a lawyer, to ensure that there are no costly legal battles later down the road. For example, even though court rulings have determined that married spouses are legal parents, even in non-biological cases, you may encounter a judge with a bias who may make you question your own knowledge. Having a lawyer in your corner is ideal, because they can deal with these judges on your behalf, freeing you up to spend more time with your family.

The Obligations of a Parent in a Same Sex Marriage

The obligations placed on someone with established parentage, regardless of whether the biological status, are the same with same-sex couples as with opposite-sex ones. Most of these obligations only come into play upon the dissolution of a relationship. They include the following:

  • The obligation to provide financial support to your children
  • The obligation to provide the court or legal counsel with income information
  • The obligation to work out a custody or visitation schedule that is in the best interest of the child
  • The obligation to stick with that schedule, regardless of your current relationship with the other parent

How to Obtain Parental Rights

As mentioned, if you are married before the child comes into your lives, you have very little to worry about. California law has already determined that both the biological and non-biological parents have legal rights to the child. In fact, in recent years California has even allowed more than two names to be present on birth certificates, making it easy for families of all types to ensure that each parent’s rights are respected.

There are a few situations where, even though you are married to your spouse, you may not enjoy parental rights to shared children. For example, some couples decide to wait until after the child is born to get married, others may not have met until after a child was conceived, born, or adopted. These situations can interfere with parental rights, even though the biological and non-biological partners are married. You can overcome this challenge by having the non-biological partner adopt the child or have them added to the child’s birth certificate.

If you are in a situation where you are a married non-biological parent, you should contact legal counsel to ascertain what your existing rights and obligations are. Lawyers in California who specialize in family law understand same-sex marriage and the legal rights of biological and non-biological parents. They can ensure that both parties have and understand their legal rights and obligations when it comes to shared children.

Parental Rights in the Event of a Marriage Breakdown

In 2005, the Supreme Court of California made a ruling that granted custody, visitation, and support rights to same-sex couples upon the breakdown of their marriages. This effectively extended the California Family Code to same-sex couples, treating those who raise children together no different than opposite-sex couples. These rules applied to all couples with children, including those who adopted or conceived through artificial insemination.

The extension of child custody, support, and visitation rights came as a result of two separate cases before the California Supreme Court in that same year. The first case dealt with child custody. In that decision, the court ruled that a parent cannot contract out of their obligation to support a child upon the dissolution of a relationship. Additionally, the court determined that it did not matter which parent was the biological one; as long as both had shown an intention to raise the children together, and effectively did so until the breakdown of the relationship.

A second case heard in 2005 also impacted the way the courts treated legal rights for biological and non-biological same-sex parents. In this case, both women underwent artificial insemination, so they could raise a family together. Each one became pregnant, and one of the women decided to stay home with the children while the other worked outside the home. The women did not adopt the other’s child, but they raised them all as a family. When the relationship ended, the court determined that both women were the legal parents, and the woman working outside the home had a child support obligation.

These rulings did not result in any fundamental changes to the California Family Code, and the rules still read as though they only apply to opposite-sex relationships. However, the decisions made in these cases did change how the laws are to be interpreted by judges. They set a clear precedent that same-sex couples are to be treated the same way as any other when it comes to parental legal rights and obligations.

The Best Interests of the Child

Family Code Section 3011 governs how the courts must treat child custody cases. In California, as well as many other jurisdictions across the United States and North America, the guiding principle behind any custody or visitation ruling must be the best interests of the child. For example, courts cannot decide to grant one parent custody over another, or to shut one parent out of a child’s life if it is not in their best interests.

When determining what type of custodial arrangement is in the child’s best interests, the courts consider the following:

  • The health and welfare of the child with each parent
  • Whether or not there is a history of domestic violence, substance abuse, or other criminal behavior on the part of one or both parents
  • The type of relationship the child or children have with each parent
  • The amount of contact the child has with each parent
  • The ability of each parent to care for the child
  • The type of bond formed between the child and each parent
  • What the existing living arrangements are, how long they have been in place, and how well they are working for the child
  • The location of the child’s school or daycare
  • Whether living with one parent would impede the child’s social development or ability to participate in the community

These are the same considerations used for every marriage breakdown, regardless of the orientation of the parents involved. If you believe that your mandatory mediator or judge is treating you and your partner unfairly as a result of your sexual orientation or family makeup, consider hiring an experienced lawyer. Obtaining legal advice ensures that any decisions made regarding you and your children are done with the letter of the law in mind, and not any prejudice on the part of the judge.

Why You Need a Family Law Lawyer

Even if you and your same-sex partner were married at the time of birth or adoption, and even if both your names appear on the paperwork, you should still seek legal counsel to be sure of your parental status. This is an especially important step for those who have just gotten married and those who are thinking about separating. Couples at the beginning of a marriage may not want to plan for a divorce, but it is always a good idea to have your legal ducks in a row. It is important to know if your life insurance policy extends to non-biological children, for example, or if you can include your non-biological child in your health insurance plan. A skilled lawyer can help you navigate those issues with clarity.

Family law is more than just marriages and divorces. When it comes to something as important as parentage, you should never leave things to the courts without adequate representation. There are numerous rights that your child may be missing out on, including the right to inheritance and the right to make decisions about the long-term care of their parents, both biological and non-biological. Contact Nancy J. Bickford, Certified Family Law Specialist, to learn more about protecting your children. She has years of experience in the legal field, helping biological and non-biological parents like you figure out important legal issues including custody, support, and the right to information. You can learn more about her personalized approach to legal services by calling 858-529-5150 or visiting today.


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