Lavin & Parisi, Attorneys at Law

Second-Parent Rights: it's more than blood

Photo of Karen Lavin

Same-sex marriages are now recognized nationwide, but with the right to marriage comes the right to divorce. Complex issues, such as property division and child custody, become more difficult for LGBTQ couples, and if not handled properly, the consequences weigh heavy on both parties.

One of the most difficult situations in same-sex divorce is child custody, especially when one or both parents are not biologically related to the child. It brings up the topic of second parent rights and how non-biological parents can remain in the child's life.

Why are custody disputes between same-sex partners hard to resolve?

The shift of accepting same-sex couples helps societal attitudes about same-sex families, but there remains no legal stability or consistency for gay or lesbian parents seeking custody or visitation to the children they decided to bring into the world and raise.

In the eyes of the court, parentage is determined by law, not necessarily biology. If a heterosexual couple brings a child into their family, they are legally parents. The process is not so simple for same-sex couples. They have to establish a legal right to be their child's parent in cases of adoption or artificial insemination.

A same-sex couple only enjoys parentages for a non-biological parent if three factors are met:

  1. The couple must live in a state that recognizes same-sex marriages or unions.
  2. The state must apply the martial presumption of parentage to same-sex couples that decide to marry.
  3. The couple must have married or registered as domestic partners before the birth of the baby.

Even in cases where the "second parent," a non-biological parent, is listed on the birth certificate, they could lose protection of their parental rights. The National Center for Lesbian Rights recommends second parents adopt or receive a parentage judgment in case of any separation.

Can a non-biological parent successfully gain custody of their child?

Any legal parent has the right to seek custody and make decisions for their children, and a biological parent does not have more rights than an adoptive parent or other person who is a legal parent.

For example, if a lesbian couple has a child together through insemination and completes second parent adoption, they are on the same legal standing for child custody. Then, the court only determines the custody in the best interests of the child.

A similar case in Illinois recently convened after a former wife of a women who was artificial insemination sought parental rights to the child. The Illinois Appeals Court ruled that the former wife had the same parental rights to the young child, despite no biological connection, because she had a legitimate parent relationship with the child.

Courts rule differently in same-sex custody agreements across the country, so it is important to check with your state's laws and how your circumstance fits into parental rights.

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