Heymann & Fletcher

Same-sex parents still face various child custody challenges

When the U.S. Supreme Court made its landmark ruling on same-sex marriage in 2015, many people felt that the time was finally right to create the families that they had anticipated for many years. In New Jersey and across the nation, couples took their vows, and many went on to add to their families through adoption or artificial insemination. Unfortunately, many of those families have not been afforded the same rights as heterosexual families, and continue to struggle with child custody matters that are directly tied to their status as same-sex partners.

An example is found in the case of a woman who lawfully married another woman, then went on to welcome a child through artificial insemination. The couple worked together to raise their son, and functioned as a family unit until the relationship went awry. The women divorced, and as part of their divorce settlement, it was agreed that the child would primarily reside with the biological mother, with the other mother receiving liberal visitation rights.

At the time of their divorce, however, the judge in their case refused to acknowledge the parental status of the second mother. He asserted that under the law, the biological father (in this case, the anonymous sperm donor) was the child's father, and that the mother's same-sex spouse could not be deemed a parent. That has prompted the second mother to bring the matter before her state's Supreme Court.

It is unclear whether this move is in response to a child custody issue between the parents, or simply aims to assert the rights of the mother who did not carry or deliver the child. As the case moves through the legal process, the family's state of residence may receive some guidance on how to approach these matters. States across the nation, including New Jersey, have had to make adjustments in regard to how same-sex parents are afforded child custody rights.

Source: startribune.com, "Lesbian challenges court ruling that she's not legal parent", Emily Wagster Pettus, June 1, 2017

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