The traditional laws of a family being just between one man and one woman are forever changing in the United States of America. Gay, lesbian, and transgender couples are afforded the same rights today as traditional parents in California. Recent Supreme Court case decisions and laws are acknowledging and respecting the rights of same-sex couples.
If you were not married at the time your child was conceived or born, you likely have a paternity case. The state of California acknowledges three types of parents: alleged, biological, and presumed. If you want custody or visitation with your child then you will need to become a presumed parent. If you are attempting to avoid paying child support, you will want to be an alleged parent and prove that you are not a biological parent possibly with a DNA test. Having a lawyer that is familiar with this rapidly changing area of the law is critical.
The Legal Analysis Involved with Same-Sex Couples and Child Custody
Generally, if you were legally married at the time your child is born, you are a presumed parent. If you were not married and want to be legally recognized as a parent, you will need to be found by a court to a presumed parent. To be a presumed parent, the following requirements must be met:
A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:
(a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
(b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
(c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) With his consent, he is named as the child’s father on the child’s birth certificate. (2) He is obligated to support the child under a written voluntary promise or by court order.
(d) He receives the child into his home and openly holds out the child as his natural child.
(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.
(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.
FAQ Regarding Same-Sex Couples and Paternity
Q: What if I am in a same-sex relationship and a child is born by artificial insemination or from a sperm donor and you are not the biological parent.
A: The case of In Re Elisa B. is the operative case. If during your partner’s pregnancy, you intended to be the other parent, attend doctor’s appointments, signed the birth certificate, or held yourself out as the child’s parent at birth you are likely to be found the presumed parent.
Q: Can a child born from a same-sex couple have more than one parent?
A: In California, the answer is yes. When the state of California wrote Bill SB-274, it was intended to be relied on in very rare situations. Section 1 of the Legislative Intent states that (d) “It is the intent of the Legislature that this bill will only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.” This bill was codified into law by Family Code Section 7612.
Pursuant to 7612
(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.
b) If two or more presumptions arise under Section 7610 or 7611 that conflict with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. (c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage. (d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person.
Q: What happens if, you are involved in a same-sex relationship and are not the biological parent, you intended to be the parent during the pregnancy, you break-up and the biological parent moves in with a new partner, your former partner wants you to have no relationship with the child, and the new partner is seeking presumed parenting status?
A: You will need to file a paternity action and apply the analysis above to the court to become a presumed parent pursuant to 7611 (d), that policy and logic dictate that you should be the presumed parent over the new partner, or show that having a third parent to prevent the minor from suffering detriment. You will also want to consider child support obligations by filing for presumed parent status.