Same Sex Couples and Child Custody

Family Law Attorney Billie Tarascio on Same Sex Couples and Child Custody

Same Sex Couples and Child Custody

What happens when a same sex couple raising a child together breaks up? Does the non-legal or non-biological parent have any rights to child custody, visitation or parenting time? Is there a responsibility to pay support? How can a non-legal parent protect their intended rights to child custody?

This situation can happen when one of the partners either adopts or biologically bears a child through donor insemination or from a prior relationship and then both partners participate in rearing the child or children. Under the current state of Arizona Law, a child can only have one legal mother and/or father. A same sex couple cannot adopt, a marriage from another state isn’t recognized, and a same sex couple cannot be listed on a birth certificate. Since only one parent in a same sex relationship can have legal status as a parent, the other partner has neither the rights nor the responsibilities that come from legal parent-hood.

The non-legal parent can petition the court for in loco parentis visitation. Any person who stands “in the shoes of a parent” can petition for court ordered visitation. Then, a Judge must decide if the court ordered visitation is in the best interest of the child.

Here in Arizona, there was a case in which two female partners shared an 18-year relationship. During that time one woman bore a child through artificial donor insemination. The non-biological parent did the majority of the day-to-day parenting while the biological mother provided the majority of financial support. When the two split up, they agreed to share parenting time equally at first. Then, the biological mother decided to rescind on the agreement.  The Court initially awarded equal parent time to both women. Then on appeal the court ruled that a biological parent is afforded “significant weight” when determining how much time a non-parent could spend with a child. In short, it is up to the non-parent to rebut the presumption that the fit parent’s decision is in the child’s best interest.

The bottom line is that there are no legal protections in place for non-legal parents and no mechanism for a same sex couple to become legal parents together. My suggestion for a couple that wants to have a child together is to enter into a contract for joint parenting rights and responsibilities. This contract should be very comprehensive and should require that in the event the partnership dissolves or there is a dispute as to the contract, the couple agree to see a pre-selected arbitrator. The arbitrator should be agreed to in advance and the couple should also agree that whatever decision the arbitrator makes be binding. This is far from iron-clad and it is unclear whether or not a court would enforce the agreement. In general, “best interests” and parental rights trump contracts, but this is an area of the law that is constantly evolving.

For assistance navigating this unchartered and potentially tumultuous area of law, give the office a call for a free consultation.