It’s been almost a decade since the Supreme Court rules that same-sex marriage should be recognized across. The country. Still, for many, the laws on the topic can feel “new.”
There is still much vagueness and confusion about what, exactly your rights are. This can be especially true for same-sex parents. Many laws are still steeped in traditional, heterosexual marriages, and it’s taking time for everyone to catch up. As a parent in a same-sex marriage, you may have questions about what your rights are.
When a woman gives birth to a baby, there is no question that she is the mother. There may be some uncertainty if she is a surrogate, but generally, women can expect to receive maternity, or legal motherhood, the moment their new baby arrives.
For men, paternity (legal fatherhood) is a little more complicated. In a heterosexual marriage, a husband is usually able to sign a birth certificate, declaring his fatherhood. Most laws allow this even if he is not the biological father.
For same-sex couples, the laws around new babies become even more complicated.
A New Baby and Male/Male Couples
If a baby is born, and the mother claims it, then that baby can have one other legal parent. When one half of a male/male couple claims paternity, and the baby has a legal mother, the other man in the marriage can be the baby’s stepparent.
Stepparents do not have the full legal rights of a legal parent. For both men to be the child’s legal parent, the mother must give up her parental rights. The biological father’s husband, then, must adopt.
A New Baby and Female/Female Couples
Same-sex mothers may face more complex challenges, depending on the scenario. If the father is not in the picture and doesn’t have an interest in the child, then the mother’s wife can adopt and become a full, legal parent.
If the father claims paternity, however, then the wife can act only as a legal stepparent. It is possible to challenge a biological father’s paternity claims. Doing so requires building a case for the wife’s motherhood.
You can make this claim in a couple of ways. First, you can argue for the child’s best interests. Courts generally take care of kids first and worry about the adults second. If you can prove that the child is better off having you as its second mother, you may be able to block the father’s paternity and adopt.
You can also make a case against the father’s paternity. This is a more aggressive tactic, but it may be necessary. The biological father may pose a direct threat to the child. Perhaps he is a professional criminal. Maybe he has a substance abuse problem or a history of domestic violence. You must work closely with your attorney to gather evidence and directly fight against paternity for the good of the child.
If you have concerns about your parental rights in a same-sex marriage, our firm is here to help. Call us today at (515) 200-7571, or schedule time with us online.