Are parents in a same-sex union entitled to the same rights as parents in heterosexual marriages? Do they also have the same obligations?
Those are two questions that the states are grappling with ever since the Supreme Court’s historic ruling making same-sex marriage legal nationwide. The better question may be, simply, “What confers parenthood inside same-sex marriages?”
The question isn’t an easy one to answer — partly because the issues of biology, intent, equal rights and the letter of the law are all colliding.
Most of the cases coming in front of the courts these days involve same-sex parents who are trying to gain custody rights. Some involve a parent who wants custody rights to the biological child of the other parent — over that parent’s objections.
In Arizona, a judge ignored the language of laws designed to confer presumptive parenthood rights only to fathers of a child born inside marriage. The judge overturned a lower court’s ruling and granted a woman “paternity” over her ex-spouse’s biological child when the child was conceived through artificial insemination.
It is a landmark case — and a ruling the attorneys for the biological mother have asked the Supreme Court to overturn. They argue that the issue has to be fought out in legislation, not family court.
On the other side of the fence, Hawaii’s Supreme Court is hearing the case of a woman who wants to avoid paying support for the child her wife conceived through artificial insemination during their marriage.
Now divorced, the woman is arguing that she shouldn’t be held responsible for child support because she didn’t intend to become a parent. Her wife used a sperm donor to become pregnant while the woman was away on military duty.
Lower courts have ruled that Hawaii’s laws give her presumptive parenthood whether she wants it or not. They will not let her off the hook for support — which is what a man could expect if his wife became unexpectedly pregnant during their marriage.
Advocates for same-sex couples are watching the cases closely — the outcomes of both could ultimately define what parental rights and obligations same-sex couples have if they divorce.
For now, however, same sex-sex couples who divorce will have to endure a possibly uneven national system for conferring both the rights and responsibilities of parenthood.
Source: tucson.com, “Supreme Court asked to rule in divorced gay couple’s child custody case,” Howard Fischer Capitol Media Services, Jan. 15, 2018