Equitable Parenting, Joint Custody and Same-Sex Couples

This week, the Western District revisited a situation that our law has not satisfactorily addressed – providing an avenue for establishing custody in a same sex relationship when the party seeking custody has no biological relationship to the child.

Angela and Melissa began dating in 1995, began living together a year later and in 1997 had a commitment ceremony in Kansas City.  At the time, Angela and Melissa could not marry in Missouri and their marriage would not have been recognized in Missouri if they had married in another state that did allow same sex marriage.  Angela changed her last name to McGaw – the last name of Melissa – and they bought a home together and began talking of children.

In 2002, Angela became pregnant through artificial insemination using an anonymous sperm donor.  The parties selected the donor together.  After the birth of twins, Angela and Melissa continued to reside together and raise the children together as a couple.  In 2007, the parties separated, but they wrote up a shared custody agreement, and for the next six years jointly parented the children and jointly paid for their support.

In 2013, Angela no longer allowed Melissa to see the children, and so Melissa brought legal action under Missouri’s paternity statute.  Melissa also raised issues of contract and equitable parentage.

The Western District avoided the constitutional issue of whether the paternity statute would cover same sex couples because it was not raised below.  The Court did suggest that after the U.S. Supreme Court decision in Obergefell, it would appear that same sex couples would have the opportunity to bring such cases in the future.

The Court also rejected any contract action for more technical reasons than substantive reasons.  Also, the Court found that Missouri has not recognized the equitable parent doctrine, and would not reach out to do so in this case.

But the Court did not leave Melissa without relief.  Rather, the Court stated that Section 452.375.5 of the Missouri Revised Statutes that allows a party to intervene in a custody action if in the best interests of the child provides an independent action for Melissa in this case because she has had an established parenting relationship with the children and it could be argued that it would be in the best interests of the children that she be given some custody rights to the children.

When couples have children out of wedlock, the law gives custodial rights only to the mother.  But our paternity statutes are written solely from the perspective of heterosexual couples; after Obergefell, these statutes will need to change to recognize couples like Angela and Melissa.

If you have questions about parentage and same sex couples, contact us – we can help.

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