Massachusetts was a leader in its early recognition of same-sex marriages. Logic dictates that the Commonwealth will also have more experience with same-sex divorce and family law matters, including child custody and support issues in cases involving the dissolution of a same-sex marriage. Three Massachusetts cases do, in fact, reflect that experience.
In a 2006 same-sex divorce case (A.H. v M.P., 447 Mass. 828), one partner never adopted the child of her partner, although she was well aware of the importance of pursuing a formal adoption. Her former partner was the child’s primary caregiver. The court determined that she had no legal right to parenting time and had no support obligations as a “de facto” parent. The result in this case indicates how critical it is for one partner in a same-sex marriage to adopt the other partner’s biological child if the first partner desires to continue to have a parental relationship with that child in the event of a divorce.
A Massachusetts court had previously considered the rights and responsibilities of a “de facto” parent. In a 1999 case (E.N.O. v. L.L.M., 429 Mass. 824), the court determined that an adult who has no biological relation to a child, but who has participated in the child’s life as a member of the family, may be entitled to parenting time and visitation rights following dissolution of the relationship. The “de facto” parenting standard thus may or may not apply, depending on the facts of each case. A same-sex parent who does not actively participate in a child’s upbringing while the marriage is intact will have little opportunity to continue any relationship with that child after the marriage dissolves.
A more positive result came in a 2012 case (Della Corte v. Ramirez, 81 Mass. App. Ct. 906), in which the court verified that a child born within a same-sex marriage is the legitimate child of both partners. At least under Massachusetts law, adoption is not required to confer legal parentage on the non-biological parent. Other states might treat this situation differently, however, and formal adoption is still a failsafe approach to ensure both partners’ rights to a legal parental relationship with a child.
Child custody and support issues in dissolutions of same-sex marriages will likely evolve over the next several years. Partners who expect to have a continuing relationship with their children in the event of a divorce should not assume that the law will support their rights. The best course of action is to consult with an experienced family law attorney to verify that both partners’ parental rights are protected early in the relationship. If you have questions about child custody in a same-sex divorce, please call our office to speak with an experienced family law attorney.