Because it has only been a few years since same-sex marriages became legal throughout the United States, those who are ending long-term relationships and who have children face issues that heterosexual couples do not.
A man can establish paternity regardless of marriage or be the presumed father if he is married when the child is born. A nonbiological mother does not have these options.
Equitable parent doctrine
The ACLU of Michigan explains that the state’s courts use the equitable parent doctrine to allow nonbiological parents to obtain custody and visitation rights. The parent must already have an established parenting relationship for this doctrine to apply. The parents must also be married.
The court ruling that established this doctrine took place in 1999 when same-sex couples could not marry. Therefore, courts presumed that it did not refer to cases involving same-sex nonbiological parents who had children before 2015 when they could marry.
Redefined parental rights
PrideSource reports on one ongoing case involving a couple who had children by implanting the fertilized eggs of one partner into the other’s uterus. Both partners’ names were on the birth certificates, but this occurred before 2014. When they separated, the judge decided that the gestational mother was a surrogate rather than a parent and stripped her of her parental rights, even though she had been a mother to the children for years.
Now, the case is going back to court with the focus on the best interests of the children factors rather than the biased interpretation of an outdated doctrine. These factors highlight the physical, mental and emotional needs of children and assume that a relationship with both parents is in their best interests.