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Closing the loop on same-sex couples’ parenting rights

On Behalf of | Aug 3, 2016 | Child Custody, Firm News

The legal right of same-sex couples to wed is now established. However, as we noted in a previous post, that doesn’t mean the skids have been greased to make resolution of other family law matters easier.

Depending on the circumstances of a case, same-sex couples in Arkansas and other states may still find themselves facing hurdles of policy that the law has yet to sort out. For example, families with same-sex parents that formed before the right to marry was extended could be founded on an adoption that names only one of the individuals as the legal parent. In the course of a divorce, if no adoption has been finalized by both parents, the custodial and visitation rights of one of them could be an issue.

As one recent legal analysis observes, the year since the U.S. Supreme Court ruling in Obergefell v. Hodges has brought a lot of change. Still, the results to date have been something of a patchwork that seems loosely stitched together. Major life events that have always affected opposite-sex families, such as deaths, births and adoptions, can leave same-sex couples in uncharted legal waters.

For example, reason might suggest that the same presumptions about parentage that apply to opposite-sex couples would apply to same-sex couples in the wake of Obergefell. However, different courts view parenthood differently. Some see it as a function of biology. Others may lean in favor of making the call based on who fulfills the parenting duties for a child. Because of a presumption of parentage that links through women, male couples could be particularly affected.

In light of this, experts in the field recommend that same-sex couples starting families, whether by in vitro fertilization or otherwise, should take the legal steps necessary to formalize adoption by both parents or obtain a judgment of parentage. Which action is taken will depend on what the law is in a given state.

The conclusion it seems proper to draw from all this is that same-sex couples can’t take for granted that the rights codified in state law for opposite-sex couples now automatically extend to them by virtue of Obergefell. Where there is any chance of possible dispute it’s important to consult with a skilled attorney to be sure rights are protected.


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