Thinking Past Recognition of Same Sex Marriage

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Tuesday, February 5, 2013

In a matter of weeks, the United States Supreme Court will hear argument in two cases that could determine whether any state can continue to refuse same sex couples to marry. Should the Court issue a broad constitutional ruling to the effect that the due process and/or equal protection clauses of the Fourteenth Amendment require that same sex couples be treated the same as heterosexual couples, no state, including Missouri, could continue to deny those rights.

If Missouri must recognize same sex marriage, presumably it must give same sex couples married in Missouri or some other state the right to divorce. And if the couple has children, Missouri would have to recognize custodial rights to children “born of” a same sex marriage.

An interesting issue that flows from these potential changes in the law focuses on couples that have children out of wedlock. Same sex couples, like heterosexual couples, have children out of wedlock but, unlike heterosexual couples, currently lack any legal standing to seek paternity (or maternity) of a child that “results” from their union. Indeed, only a few years ago, the Western District of the Missouri Court of Appeals rejected a challenge by a woman seeking custodial rights to the biological child of her lesbian partner because the woman was not a biological parent of the child.

It would seem that if the U.S. Supreme Court declares that it would violate basic equal protection to deny same sex couples the same rights as heterosexual couples, that one of those rights would be the right to establish parentage to a child born out of wedlock. Obviously, any same sex couple, married or not, that has a child together does so through a third party donor of egg or sperm; by definition, any child “born” of that couple will have the same DNA of only one parent. It would seem illogical to acknowledge the parentage of the child to both parents only when those parents marry. So it appears a strong case would exist to acknowledge “universal” parentage – that the non-biological parent of a child born of a same sex relationship has custodial rights and duties of support analogous to the biological parent of a child born of a heterosexual relationship.

A key difference, some would argue, is the lack of biological attachment. With paternity actions, we know from DNA whether an individual is in fact the parent of a child. In this new world of “universal” parentage, how would we in fact know a relationship intended to create a parent-child relationship? What would be the evidentiary standard – some form of intent to co-parent? If so, would that no create a slippery slope that could bind a man to the child of his live-in girlfriend?

What seems clear, as we move toward recognizing marriage equality for same sex couples, is that the law will have to adapt in many ways not currently discussed in the debate about equal marriage. Each year, the number of children born out of wedlock continues to rise as more and more couples choose not to marry. Necessity alone will bring the question of parentage of children born to same sex relationships into larger view, and the law will have to wrestle with some increasingly challenging questions.

We will continue to monitor the status of the same sex marriage legal battle and post updates on our blog. In the meantime, should you have questions regarding custody in a same sex relationship, please contact St. Louis family law attorneys at The Marks Law Firm , L.L.C.– we can help.