The Modern Family/Legalities of Same Sex Parents under Family Law


The Modern Family/Legalities of Same Sex Parents under Family Law

The modern day family comes in wonderful varieties.  Same sex couples have children, sometimes two men will have a gestational surrogate or a non-gestational surrogate; two women will start a family  and in some situations a woman will have an adulterous affair and bring another child into the home with the non-biological father.  With all of these varieties, you might ask under what circumstances will a person remain legally responsible for the child and be considered a “parent”?

Well, let’s break this down because it can get complicated.  In situations where you have a surrogate, if that surrogate used her own egg then she is a parent of that child and liable for child support unless the child is adopted by another mother.  In those situations, the child must be adopted out to the person who sought the surrogate. On the other hand, non-gestational surrogates use another woman’s donated egg and therefore have no blood line or parental rights  toward the child.  The woman donor who used a physician assisted egg donation facility has no obligation to the the child either.  This is the best scenario for the couple or individual who wants to hold the child out on his/her own as there would be no outside ties to the child.

Sperm Donors:  if  the sperm donor went to a certified facility where they use physician assisted procedures he would have no ties or child custody or child support obligations toward the child. I once read online about a person who donated sperm to two women he found on craigslist who advertised the need for sperm (true story) and after he donated sperm to his surprise he was responsible for child support for the life of that child.  if you have any thoughts about donating sperm, seeking a surrogate etc. please seek the advice of counsel as it is complicated and could lead you to a life of financial liability.

Children out of marital affairs:  This is more common than one would think but there are fathers out there raising children as their own without any biological ties to that child. The father who holds the child out as his or her own would be considered a “presumed parent.” The law prioritizes less biology and more conduct.

Once a person is considered a “presumed parent”  he/she is the child’s parent.   There is absolutely no difference moving forward between that case or any other case in which the child was from a traditional family.  There is an overarching rule for all familial situations which would override even those scenarios above and that is under any situation in which a person holds the child out as their own, takes that child in, that child believes that person to be like a father or mother then that person has even MORE rights than the biological parent.  The law rewards people who conduct themselves as a parent to the child.

Disclaimer * Nothing in this post shall constitute legal advice nor create an attorney-client relationship.  Do not rely on this post as legal advice, please consult an attorney should you have any thoughts, questions or concerns regarding any family law concerns.  This post does not go in depth as to legal implications or requirements.  It is only meant for a brief, breezy read and under no circumstances whatsoever to be relied upon.