The right to same-sex marriage is not only about the ability to walk down to the aisle or hear wedding bells. The fact is that same-sex couples may soon be able to enjoy expanded child custody rights, along with other provisions that accompany divorce. With the right to wed, same-sex couples also should receive fair protection when terminating their domestic partnership; that includes equitable treatment in child custody cases. One recent legal proceeding in the state of Colorado illustrates the difficulty that has been faced by same-sex couples with regard to their children.
One lesbian couple in Colorado had been living together for several years when they decided to try to have a child. They attempted to use artificial insemination, but the procedure was not successful. A few years after that first attempt, one of the women slept with her male friend, and she became pregnant. Importantly, the woman did not tell her partner that she had sex with a man; rather, she told her that she had conceived through artificial insemination.
When the couple’s relationship soured in 2011, the child’s non-biological mother found herself struggling to retain child custody rights with her same-sex partner. She had tried to adopt the child earlier in their relationship, but the court turned her away because there was not an appropriate category available for a child to have two mothers. Although same-sex marriage became legal in 2013 in Colorado, the couple was not protected under those statutes. The child was deemed to have two biological parents already – even though the child’s birth certificate did not contain information about the father – so the other woman was denied parenting rights under existing mandates.
After a significant amount of legal maneuvering, the woman was designated as the child’s other mother, but only after the father legally divested himself of any parenting rights in the situation. This case sets an important precedent for same-sex parents who are unable to marry and who are not the biological parent of their child, but who still want to be involved in parenting through child custody agreements. The definition of ‘parent’ continues to shift throughout many legal jurisdictions, including those in Colorado.
Source: Time, “The Legal Minefield When Two Mommies Split Up Read more: The Legal Minefield When Two Mommies Split Up” Belinda Luscombe, Jan. 14, 2014