Supreme Court Ruling on Same-Sex Marriage Necessitates Revision of Custody/Visitation Laws

same sex marriage

Several people are rejoicing today as the Supreme Court ruled in favor of same-sex marriages. This was a big, very important, and long overdue step towards equality in the LGBT community.

However, along with this ruling comes some very poignant questions as to how the children of these couples will be treated, and whether the laws regarding rights to children need to be revamped. A few weeks ago I wrote an article on rethinking the presumption of legitimacy. The recent Supreme Court ruling further supports the argument that it is time for a change in how custody rights are determined.

To sum up the current law in a nutshell: when a mother is married at the time of conception and/or birth of the child, it is presumed that the child is legitimate and the person the mother is married to is the father. This presumption is so strong, it could prevent another man from asserting paternity (or the mother claiming another man is the father) and being entitled to a DNA test.

How will this presumption come into play with same sex couples? New York courts have already dealt with the issue of custody, visitation and support in a few cases, but they don’t seem to be consistent and don’t deal with the fact that these rulings contradict the law and controlling precedent, without actually overruling said law.

Specifically, in 2010, two different cases went before the New York Court of Appeals; one pertaining to child support and one pertaining to visitation rights.  In one case, the Court of Appeals ruled that a woman who gave birth while in a committed same-sex relationship was entitled to child support from her former partner. In the other case, the Court of Appeals ruled that the former partner of a woman who had conceived a child by artificial insemination after the parties entered into a civil union was entitled to seek visitation of the child. However, four years later, the Nassau County Family Court ruled in the completely opposite direction and held that the non-biological parent in a same-sex relationship had no standing to seek custody and/or visitation of an almost two year old child despite the fact that the parties made the decision together to conceive the child, that for almost two years the child knew both parties as his parents, and the parties were married three weeks after the child was born.  Less than a year later, Suffolk County Family Court determined that a woman who was joined to her partner by civil union did have standing to seek visitation right to the child conceived by artificial insemination.

The Courts need direction as they try to determine how to handle these cases. An argument could be made that, now that same-sex marriage must be upheld in all fifty states, the presumption of legitimacy should remain in full force and effect, and, as long as the parties were married at the time of conception and/or birth, both parties would have rights to the child in the event of a break-up. However, the Court of Appeals has already ruled that only a “committed relationship” is required to have rights to a child. After all, it certainly does not seem to be in a child’s best interest to deny the non-biological parent rights to a child after being this child’s caretaker for several years simply because the parties were not married at the time of conception or birth. But this leads to further questions and confusion. What is the definition of committed relationship in this situation? How does this ruling apply to heterosexual couples? Would this confer rights to step-parents that don’t formally adopt children? What about heterosexual couples who are not married that conceive a child with donor sperm? What rights do the other biological parent have?

In the 21st century there is no longer any such thing as a “typical” family. Conferring rights to seek custody and visitation of children by using the presumption of legitimacy and DNA testing only would be a miscarriage of justice for many American families, not to mention the children caught in the middle. While these factors are still important, they only complete a small fraction of the puzzle. At some point Courts and Legislature will have to concede that the law needs to be updated, or the inconsistent rulings will continue and children will continue to be ripped from their parental figures. The remedy must include a best interest analysis for the child. Perhaps it is also time to consider that a child can have more than two legal parents. Only time, several appeals and, unfortunately, many broken families will tell.

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