Navigating Divorce, Parentage, and Child Custody Rights for Same-Sex Couples

By James T. Hayes, Associate Attorney at Law Offices of David M. Lederman

Since the landmark Supreme Court decision in Obergefell v. Hodges in 2015, same-sex couples have been granted the same legal rights and protections as opposite-sex couples. This pivotal ruling has resulted in significant updates regarding marriage, domestic partnerships, parentage, and child custody. Below, we will explore key aspects of these legal changes and how they impact same-sex couples in family law matters.

Domestic Partnerships:

For same-sex couples in California, domestic partnerships are legally equivalent to marriage. This also means that in the event of dissolution (legal separation), registered domestic partners have the same rights and obligations as married spouses. Whether you’re dividing assets or dealing with spousal support, the law treats both unions equally. Furthermore, no state or local agency can discriminate based on your relationship status—whether you’re in a marriage or a domestic partnership.

Same-Sex Marriages:

In California, same-sex marriages are fully recognized, but what makes the state’s law particularly helpful is the relatively loose residency requirement for dissolution. Even if neither spouse currently resides in California, you can still file for divorce, nullity, or legal separation as long as the following apply:

1. Your marriage was originally performed in California.
2. Neither you nor your spouse resides in a jurisdiction that recognizes or will dissolve your marriage. If you live in a place that does not recognize same-sex marriage, the presumption is that they won’t dissolve it either. However, California courts will still handle the process.

Couples that are Both Married and Registered Domestic Partners:

Couples who are both legally married and registered domestic partners must be aware that filing for divorce alone won’t end the domestic partnership. You have three options:

1. You can terminate your registered domestic partnership by filing for its dissolution, and separately file for divorce to end the marriage.
2. Alternatively, you can file a Notice of Termination of Domestic Partnership with the Secretary of State and handle the dissolution of marriage separately.
3. A more streamlined option is to petition the court to dissolve both the marriage and the domestic partnership in a single legal proceeding.

Parentage Actions for Same-Sex Couples:

One of the most progressive areas of California family law is its recognition of non-biological parents. Under the Uniform Parentage Act, a person who has taken on the role of a parent, even without biological ties or legal adoption, can be legally recognized as the child’s parent. This is especially relevant for same-sex couples where one partner may have had children through artificial insemination or surrogacy.

If you’ve raised children with your partner and have accepted them into your home as your own, California law will recognize you as a legal parent, ensuring your parental rights in custody or visitation disputes. This policy is centered on the best interests of the child, preferring that children have two parents for support and stability, rather than one.

By the same token, a non-biological parent who is recognized as a legal parent will have the same financial and legal responsibilities toward the child as a biological parent, including child support obligations.

Conclusion: Whether you’re dissolving a marriage, domestic partnership, or asserting parental rights, it’s crucial to understand how California’s laws have evolved to protect same-sex couples. Legal processes involving relationships, parentage, and custody can be complex, but knowing your rights can help you make informed decisions. For any questions or guidance, it’s always a good idea to consult with a knowledgeable family law attorney.

At the Law Offices of David M. Lederman, we are committed to providing you with the clarity and support you need to navigate these legal waters.