The Supreme Court made a big splash with its June 2015 ruling in Obergefell v. Hodges, in which it declared a constitutional right to marry a person of the same sex. And while Obergefell may have changed the world (and happened because the world had changed), it did not resolve all the issues arising out of same-sex coupling. Parentage law—the statutes and doctrines that define parental status and its concomitant rights and obligations—continues to evolve. While there has been no big splash in the wake of Obergefell, there are discernible ripples. This column will examine the most recent decisions on the parental rights of a lesbian co-parent.
Same-sex couples cannot produce a child that is genetically related to both of them—and only them. (Let’s put aside, for the moment, the new technology that allows the nucleus of one fertilized egg to be replaced with the nucleus from another fertilized egg as a means to avoid passing mitochondrial disease to the baby—and which has, so far, produced one actual baby.) Parentage law has thus always been complicated for families anchored by a same-sex couple.
A recurring question—for decades now—relates to the status of a biological mother’s lesbian partner, married or unmarried. The rights of the lesbian co-parent vary widely.
Parentage Rules in Same-Sex-Couple Families Before Obergefell
Before Obergefell, lesbian co-parents had varying options (and in some states, none) for establishing rights vis-à-vis a partner’s child. In some states, the lesbian co-parents were (and are) able to gain full “legal parent” status, by virtue of a so-called “second-parent adoption.” (A handful of states had expressly disallowed such adoptions, however.) This is the most secure way to seek recognition, since adoption decrees are given full faith and credit across state lines (a principle reaffirmed recently by the U.S. Supreme Court), and the formal decree eliminates expensive, fact-intensive litigation about the non-biological parent’s parenting and the biological parent’s consent to the sharing of parental rights. One question arising after Obergefell is whether unmarried, same-sex couples will be able to obtain this type of adoption without marrying and using the regular stepparent adoption procedures.
In some states, lesbian co-parents were also able to gain full or quasi-parental rights based on the doctrine of de facto parentage, which allows courts to recognize and protect the social and emotional tie between a non-biological parent and a child. Although the exact criteria vary, the gist of this doctrine is a finding that the biological parent has actively consented to and fostered the development of a parent-child relationship and that the partner has actively participated in childrearing. (Some discussion of this doctrine can be found here and here.) After Obergefell, a few courts have suggested that de facto parentage might be reined in or even abolished given the ability of same-sex couples to marry and adopt nationwide (see discussion here of Conover v. Conover and McGaw v. McGaw). But despite this specter, New York’s highest court just adopted the doctrine of de facto parentage, in Brooke B. v. Elizabeth C., after rejecting it twice nearly two decades apart.
In addition, some states had begun to recognize enforceable co-parenting agreements—creating a result similar to de facto parentage but by contract rather than by action. These rulings often avoid the parentage question altogether and simply hold that a sufficient agreement between the parties can result in enforceable custody and visitation rights, even if the second parent is not fully recognized as a legal parent. The Supreme Court of Ohio, for example, in In re Mullen (2011) held that a “parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-parenting agreement,” the crux of which “is the purposeful relinquishment of some portion of the parent’s right to exclusive custody of the child.” (The case and the requirements for the writing are discussed here.) The North Carolina Supreme Court (Boseman v. Jarrell) and the Kansas Supreme Court (Frazier v. Goudschaal) reached similar conclusions.
Parentage Law in the Age of Marriage Equality
Once same-sex couples were allowed to marry—initially in just a handful of states and now in all of them—a new parentage question arose. Are female spouses entitled to the benefit of the marital presumption that has long been applied to establish legal parentage between husbands and their wives’ offspring?
Married men have been treated as legal fathers in part as a guess about a biological tie and in part to protect the intact family from stigma, instability, and intrusive claims by third parties. With a same-sex spouse, the marital presumption cannot be supported by the guess about a biological tie, but it can be supported by those other reasons, as well as based on a proxy for consent of the biological parent to the sharing of parental rights. But whether and how these reasons come into play depends on the scope and source of the marital presumption in play.
When a married woman conceives a child using donor sperm, her husband, in most states, is deemed the legal father as long as he consented to the insemination or in vitro fertilization. This rule both cements the tie between husband and child and provides a protective shield against claims by donors. (It protects donors as well, from unwanted child support obligations.) After Obergefell, lesbian married couples should be able to take advantage of the same rule of legal parentage, provided the spouse consented to conception. To deny this right would likely violate Obergefell and its mandate of equality between different-sex and same-sex marriages, given that the non-biological spouse in both cases is similarly situated.
But not every state has a specific rule regarding assisted reproduction. In those states that do not, a female spouse should be able to avail herself of the general marital presumption, explained above, which deems a married woman’s spouse the legal parent of any child to which she gives birth. Many states that adopted marriage equality before Obergefell seemed inclined to apply the marital presumption equally to same-sex couples. But whether other states will do the same is not yet clear. The risk of relying on the marital presumption is that it is usually rebuttable. And if proof of no genetic tie is a sufficient basis to rebut the presumption—as in the case of a husband who was cuckolded—the presumption will be of little benefit to a lesbian spouse who clearly does not have such a tie to her spouse’s biological child. But, as discussed below, courts are beginning to work out the contours of the presumption as applied to a same-sex spouse.
Parentage in the Age of Marriage Equality, But When There is No Marriage
When an unmarried woman conceives a child using donor sperm, the child, in most cases, has no legal father. Practically speaking, anonymous donors could not have rights or obligations because their identity is unknown. Known donors could, conceivably, but a majority of states apply a rule of non-parentage to all donors, regardless of any current or past connection to the mother. But what about the biological mother’s unmarried partner? She could be protected, as discussed above, by second-parent adoption, a co-parenting agreement, or the doctrine of de facto parentage, depending on her jurisdiction and the facts surrounding the particular child’s conception, birth, and upbringing. And if none of those doctrines is applicable?
In a new case from the Massachusetts Supreme Judicial Court, Partanen v. Gallagher, the court granted presumptive parentage to a woman’s unmarried, female partner. The two women were in a nonmarital relationship for 11 years, during which time Gallagher gave birth to two children with her partner’s “full acknowledgment, participation, and consent.” They held themselves out as joint parents and raised them together until separating in 2013.
The state’s presumed parent law has a not-uncommon provision that permits a person to be treated as a presumed parent (a rebuttable status) when if “he, jointly with the mother, received the child into their home and openly held out the child as their child.” The question for the court was whether this provision could be invoked by a female co-parent, who clearly lacked a genetic tie to the child. The court ruled that Partanen could invoke this provision. The court read the statute in a gender-neutral manner—as applicable to any “two people” who receive a child into their home and hold him or her out as their own. (The same court had already ruled, in Hunter v. Rose, that a married co-parent of the same sex could invoke the marital presumption.) Although the presumption of parentage is usually rebuttable with evidence of lack of a genetic tie, the court held that such testing would not be relevant in this type of case. It did note in a footnote, however, that the presumption could be rebutted in other ways that tended to show a child was not actually “born to” the partner. By way of example, the court suggested the biological mother could attempt to show that the claims about her partner’s consent to the inseminations and her involvement in the pregnancies and births are untrue.
Meanwhile, two time zones away, the Colorado Court of Appeals applied a similar statute, in In re C.P., to grant standing for a mother’s former same-sex partner to sue for parenting responsibilities even though the adult relationship ended prior to the child’s birth. But the partner paid child support and had regular caregiving responsibilities for the child after its birth, giving her the presumed parent status and standing to file for parenting time. Under this application of the statute, both women can be the child’s “natural” mother.
These cases are everywhere, with new ones decided every week. An appellate court in Louisiana, in Ferrand v. Ferrand, just gave a transgender male another opportunity to seek shared custody of children born to his former partner during their relationship. An appellate court in Kentucky ordered a mother’s former same-sex spouse to pay child support for a child born slightly after they entered into a civil union because she had acted like the child’s parent during the relationship. The Arizona Court of Appeals recognized, in McLaughlin v. Jones, a woman’s female spouse as the presumptive parent of a child born via artificial insemination during their marriage.
The facts and relevant law differ among these cases, but the trend toward greater recognition of the same-sex co-parent is unmistakable. Given how dramatically the marriage and parentage landscape has changed, it would behoove state legislatures across the land to take another look at families and family law to figure out the best set of principles. Not every family should have to litigate to find out whether the law treats them as a family or not.