In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
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