• two women opposed

By:  Susan L. Pollet, Esq.

Gay male and lesbian couples typically raise children in three contexts.  The first is where one of the partners is already the biological parent of a child.  The second is where the same-sex couple agrees to have a child and plan that one of them will be the biological parent, and that, after birth, they will raise the child together.  The third is where the same-sex couple seeks to adopt or become the foster parents of a child who is not biologically related to either of them.  

Approximately 250,000 children are being raised by same-sex couples in the United States, but the rights of these parents “vary widely among states,” in that only about half allow second-parent adoptions by the unmarried partner of an existing legal parent and a handful of state courts have ruled these adoptions not permissible under state laws.  Yet another estimate is that at least 270,000 children are being raised by same-sex couples; this number does not include single lesbian, gay, bisexual or transgender parents.  It seems likely that same-sex parents are underreported in the Census.  (Another cited statistic is that between one million and nine million children are raised in families with at least one gay parent).  Same-sex couples are raising children via single parent adoptions in all states except Florida.

In today’s world, there is a potential for a child to have up to five parents-the egg donor (the genetic mother), the sperm donor (the genetic father), the surrogate mother who hosts the pregnancy, and two social or psychological parents whom the child knows as mother and father.  The movie “The Kids Are All Right,” concerned two children conceived by artificial insemination.  There are two lesbian mothers, whom the children refer to as the “Momses,” each having carried one of the children, using the same sperm donor for both.  That is a relatively uncomplicated example of the modern family.  Competing claims of same-sex parents and claims involving donor parents can become extremely complex, however.

What happens when same-sex couples seek to divorce? If they remain in the few states where same-sex couples can marry, then court matters should proceed as they would in cases involving heterosexual couples.  However, if they move out of those states, they may very well be caught in a situation where they are unable to dissolve their legal bond.  This is because of the limited recognition of these marriages, the residency requirements in the divorce statutes and the Supreme Court’s interpretation of the Full Faith and Credit Clause as extending only to those divorce decrees made with subject matter jurisdiction predicated on at least one party to the divorce being domiciled in the state.