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Establishing parentage when same-sex parents break up or divorce

On Behalf of | Jan 5, 2021 | Child Custody & Visitation, Divorce

The landmark U.S. Supreme Court ruling in Obergefell vs. Hodges in 2015 legalized same-sex marriage across the nation. However, same-sex marriage has been legal in California since 2008, although this legality was challenged. Despite these advancements, some same-sex couples have decided to remain unmarried even if they have become parents together, whether through in-vitro fertilization, surrogacy or through adoption. However, parentage can become an issue if an unmarried same-sex couple breaks up or if a married same-sex couple had a child prior to marrying and are now seeking a divorce.

When will parentage need to be established?

Generally, the law assumes that if a couple is married, any children born to the marriage are considered the children of each parent for legal purposes, including seeking child support and child custody. However, unmarried parents need to establish parentage before they can exercise such rights. In addition, if a same-sex couple had a child while they were unmarried, the child may have only been the biological child of one partner or who was the adoptive child of one parent. In such situations, parentage may need to be established before the non-biological or non-adoptive parent can seek child custody or child support.

An example

For example, if two women are in a same-sex relationship and agreed to co-parent a child when they were or currently are unmarried, and later break-up or divorce, the woman who did not give birth to the child may not be considered the child’s parent for legal purposes until parentage is established by the court. The “other mother” may have to show that she and her partner intended for her to be the child’s parent. The same can be said for two men in a same-sex relationship.

Parentage in same-sex relationships can be complex

Ultimately, parentage cases in same-sex relationships can be complex. This post does not contain legal advice applicable to any specific case. Same-sex couples in Los Angeles who are facing child custody or child support issues may want to discuss their situation with a family law attorney to better understand their rights and options.