Marriage, Sexual Orientation, Adoption and Custody

same sex marriage adoption child custody

We live in an exciting time with regard to the definition of “family” and “parental relationship,” where biology is no longer the sole determinant of parentage. But while people have many different types of relationships, the law has been slow to catch up to these changing realities.

For example, recently a judge in Mississippi prevented a same sex couple from adopting a child on the sole ground that the sexual orientation of the parties would be harmful to the child. While the judge, after public pressure, reversed his decision, it is not unique, even though all but one state recognizes the right of gay people to adopt and serve as foster parents. And this week, the Kentucky Supreme Court will hear a case where a woman who helped raise a child in a same sex relationship but never established any legal rights to custody now seeks to block an adoption of that child by the husband of the other woman in the former same sex relationship.

After the Supreme Court decision in Obergefell, states cannot discriminate against individuals based on sexual orientation in parentage cases. No state can preclude an adoption solely on the basis of the sexual orientation of the prospective parent. But many same sex couples, like many heterosexual couples, will choose to have children outside of marriage. But our parentage statutes only address biology, and in same sex relationships one or perhaps both parents will have no biological relationship to the child. Is having a de facto parent relationship with a child for a significant period of time sufficient to create a custodial right to at least visitation after that relationship ends?

Our courts and our legislatures will have difficult questions to address. While we can see a good reason to allow de facto parent rights in same sex couples who did raise a child together for years, perhaps because the law did not allow it at the time. But we can also see significant problems arising if living together and raising a child not biologically related to one parent can lead to custodial rights and eventually a duty of support.

Currently, our statutes allow for third parties to intervene and seek visitation rights if they have a significant relationship to the child and it would be in the best interests of the child (usually for grandparents denied visitation). This statute could solve some of the problems raised by lack of legal status, but not all of them.

Ideally, a same sex parent seeking legal rights should do so doing the relationship, by seeking an adoption of the child. Beyond that, until Missouri changes its parentage statutes, well meaning de facto parents will have little legal recourse if the other parent denies visitation.

If you have questions about custody, visitation, adoption and same sex relationships, contact us – we can help.