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Surrogacy, same-sex couples and child custody in California

On Behalf of | Aug 1, 2023 | Second Parent/Step-Parent Adoption, Surrogacy Law |

With its landmark decision in Obergefell v. Hodges in 2015, the U.S. Supreme Court ruled that same-sex couples enjoy the same marriage rights as opposite-sex couples. However, there are still some areas where the law treats the two types of couples differently. Child custody issues can still be particularly complex for LGBT parents.

Biological parentage

The difference is most stark in cases involving a married same-sex couple who divorce after having children.

When a child is born to opposite-sex parents who are married, the law presumes that the husband is the father of the child. If the parents should later divorce, the father will continue to have all parental rights and responsibilities, including visitation rights and child support obligations. If the parents are not married at the time the child is born, one or both parents must legally establish paternity in order for the father to have these legal relationships to the child.

Of course, things work differently for same-sex couples with children. In many states, parental rights may depend upon which spouse has a biological relationship to the child.

In other words, imagine a married lesbian couple who conceive a child through artificial insemination of one of the spouses. As part of that process, they must legally establish that the sperm donor is not recognized as the father of the child.

Later, the two women divorce. Under the laws of some states, only the woman who bore the child would then be recognized as the child’s parent.

California law

California is not one of those states. In a 2005 case, the state supreme court heard a case much like the example we cited above and found for the mother who helped raise her twins but had not given birth to them. The case set the precedent that married same-sex couples should enjoy full custody rights after they divorce. California later passed laws that strengthened those rights.

Still, those protections may not always apply if one or both parents move to another state.

Same-sex couples who are considering artificial insemination or surrogacy may want to learn all they can about adoption and other options for ensuring that each spouse enjoys parental rights.