What Happens in Child Custody Cases Involving LGBT and Same-Sex Parents?

The law is notorious for running several years behind societal developments. Same-sex marriage is no exception. One area where the legal field has struggled to keep up involves child custody cases for LGBT parents that rely on assisted reproductive technology (ART), such as artificial insemination, surrogacy, and egg and sperm donorship. Under Massachusetts and U.S. law, a biological parent of a child has a significant advantage in a child custody dispute. State law applies these same advantages to the parents’ adopted children, but courts have struggled to address parenting arrangements in which a child is a biological offspring and the remaining parent did not complete the formal adoption process prior to the divorce. (The law similarly struggles with defining “biological children” when an LGBT donates sperm or an egg to a surrogate or if the parent gives birth to a child that he or she is not genetically related to via a sperm or egg donor.) To be clear, if both LGBT parents take all of the necessary steps to each appear on a child’s birth certificate as a biological or adoptive parent, each parent is likely to receive equal treatment under the law. In cases involving less perfect scenarios, however, the spouse with the superior parental status may have the upper hand in keeping custody of a child born during the marriage. Despite caring for the child since birth, the non-biological/adoptive parent may be treated like a stepparent, with few if any legal rights. Thankfully, Massachusetts provides some remedies for LGBT individuals who are parents in every sense other than legal status. For example, the law increasingly recognizes the importance of de facto parents in a child’s life. In the case of Guardianship of K.N., the Supreme Judicial Court of Massachusetts decided that non-biological parents—like a stepparent, grandparent, or the non-biological parent in a same-sex marriage—could be granted visitation rights over the objection of the child’s biological or legal parents, if the relationship they have with the child is close enough that its loss would harm the child. Under the Massachusetts guardianship statute, courts have also found granted legal custodial status to step-parents over biological parents when the step-parent is the superior caretaker. While these developments under the law do not put non-biological/adoptive parents on even ground in a child custody dispute, attorneys are increasingly able to carve out parental rights for same-sex and LBGT parents who would have once been powerless to preserve a meaningful parent-child relationship. Law Office of Polly Tatum 19 Cedar St Worcester, MA 01609 (774) 366-3688 https://www.LawOfficeOfPollyTatum.com