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Parents’ Rights in a Same-Sex Marriage

With the rise of new family dynamics, questions inevitably come. Such is the case with same-sex marriages. After doing things a certain way for hundreds of years, society must adjust to the changes. There are interesting legalities to explore when it comes to raising children and the legal rights of parents. For example, when a pregnant woman is married to a man, that man usually gains paternity once the child is born. However, when a pregnant woman is married to another woman, that wife does not automatically become the child’s mother.

In this article, we will explore some legal scenarios regarding same-sex marriages with children.

Stepparent’s Rights

If you are married to someone of the same sex, and they have children with someone outside the marriage, you are likely a stepparent. Gender is completely irrelevant in this scenario. If the child has two legal parents, and you are married to one of those parents, you have stepparent’s rights.

Male/Male Marriages

A man’s rights to his child are more complicated than a woman’s. When a woman has a child, there is no question that she is the child’s mother. This is not so for men. When an unmarried man fathers a child, he must establish paternity to have legal claim to that child. In a best-case scenario, there is no objection from the mother, and the process runs smoothly. However, there are ways that the woman can block paternity. There are also ways for a woman or a child to attempt forcing paternity onto a man, which has complications of its own. All of this is relevant when considering two men raising a child together.

Assuming that one man is the biological father, here are some potential scenarios the couple could encounter:

  • The child has two legal parents. In this scenario, the second man in the same-sex marriage would be a stepparent.
  • There is no legal mother. Perhaps she passed away, or she gave up her legal rights as a parent. If Jim has a legal son with no mother, and Robert wants to be the boy’s second father, then Robert must legally adopt this child.
  • Commonly, we see same-sex couples adopt a child together. In California, there are ways to do this legally without being married. Registered domestic partners, for example, may adopt a child together.

Female/Female Marriages

Many of the same legalities outlined above apply to female/female relationships as well. If the child has two legal parents, the mother’s wife can be a stepparent. When the child has no legal father, the mother’s wife may adopt. Also, a lesbian couple may adopt together, either as a married couple or domestic partners.

The unique challenge with a female/female relationship is the issue of paternity. Perhaps Sarah has a child with a man from a previous relationship, but he is not the legal father. Regardless of how involved he is in the child’s life, he has no legal claim to the child without paternity. If Sarah’s wife, Clair, wants to be the child’s mother, this could lead to a legal quagmire. Mike, the father, could attempt to block Clair, or he could rush to establish paternity before the adoption goes through.

Talk to a Lawyer

If you are in a same-sex marriage and want to adopt or establish paternity, contact a skilled attorney. Same-sex marriage is still fairly new territory in family law, and bad-faith actors can take advantage of this fact. Even if all adult stakeholders have the best intentions, it’s possible to make a small mistake that has lasting consequences. With legal help, you may be able to avoid these problems and have rights to your children.

If you have questions or concerns about your rights as a parent, we may be able to help. Call us today at (916) 299-3936, or contact us online.