Parental rights are separate from marital ones, and exist independently of sexual orientation and relationship status. However, same sex couples can face unique challenges, when it comes to child custody and establishing parentage.
In order to exercise parental authority—and to avoid future child custody problems—it’s important for same sex parents to establish themselves as their child’s legal parent, as soon as possible.
Here’s what you need to know about same sex parenting in California, and what the Provinziano team can do to help protect your family in these important matters.
Same Sex Parenting: Child Custody Basics
In family law, child custody refers to the wide range of rights and responsibilities that a parent has over their child. Parental rights are not the same as marital rights, and exist independently of sexual orientation and relationship status.
In California, these rights and responsibilities break down into two main categories:
1. Legal custody—a parent’s right to make decisions on behalf of their child, and to determine how they will be raised.
2. Physical custody—a parent’s right to have physical contact with their child, and to live under the same roof.
When parents get divorced, these rights must be divided and shared between spouses. Judges can grant rights to both parents in “joint custody,” or to one parent, alone (called “sole custody”). These decisions are made, according to the child’s best interest.
In California, same sex couples enjoy the same rights to custody, visitation, and child support, as opposite sex partners. However, in order to exercise these rights, you must first establish yourself as the child’s legal parent.
A legal parent has gained formal recognition as a child’s parent through either birth, adoption, or some other legal proceeding.
Legal parents have the right to make decisions about their child, including health and medical procedures, education, religious exposure, and social upbringing. They also have the authority to argue for custody, visitation, and child support rights in court.
The easiest way to become a child’s legal parent is through birth. When a child is born to married partners, spouses in that union are automatically considered to be that child’s legal parents. In California, this presumption of parenthood is extended to both hetero and same sex partners, alike.
Unmarried, same sex parents who do not establish themselves as a legal parent, however, may find it more difficult to argue for child custody and parental rights, down the road.
Same Sex Child Custody Disputes
A parent’s legal status—or lack, thereof—can have a tremendous impact on child custody disputes.
In these situations, a legally recognized parent would have a clear advantage over a non-legal parent. If both parents are legally recognized, however, then the case becomes more straightforward.
Here are three child custody scenarios that often rise between same sex couples, and how legal parentage affects each of one.
1. Child is Adopted by Both Parents
In this first example, parental rights are relatively straightforward. If both parents have adopted their child, then both are considered to be its legal parents. Thus, both have full rights to claim child custody during a dispute, and equal authority to do so.
2. Child is Born into Marriage
According to California’s presumption of parenthood, a child born to married partners is automatically considered to be the legal offspring of the spouses in that union.
California is one of very few states that grants this presumption to both hetero, as well as same sex parents, alike—even though only one of the parents is biologically related to the child.
In order to accommodate for the rights of a child’s other biological parent, California law allows up to three parents to be listed on a child’s birth certificate. This gives all parties involved the ability to exercise their parental rights, and sue for custody, during a dispute.
3. Child is Born to Unmarried, Same Sex Parents
Finally, we have unmarried, same sex co-parents. Here, either: 1) the biological parent is the child’s only legally recognized parent; or 2) a non-biological, adopted parent is the only legally registered parent.
In both of these scenarios, only one parent is recognized as the child’s legal parent. This puts the non-legal parent at a significant disadvantage, if the couple ever breaks up, and makes it much more difficult for them to gain child custody.
That being said, it’s not impossible, and the court may give custody rights to a non-legal co-parent, depending on the circumstances.
Child Custody and Non-Legal Parents
California courts recognize that—as far as kids are concerned—the only things that really matter in a parent are responsibility, copious amounts of love, and selfless care. And that furthermore, legal adoption is not necessary, in order for a co-parent to fulfill a parental role in a child’s life.
That’s why, in some situations, the California courts may grant a non-biological / non-legal co-parent custody rights, without requiring a formal adoption.
When this happens, that individual is called a “de facto parent.”
De Facto Parents
A de facto parent is someone who cares for a child in a parental capacity, but is not recognized as their legal parent.
In determining whether an individual qualifies for this status, the court will consider:
- Whether the non-parent lived in the same house as the child.
- Whether the child’s legal parent was aware of—and consented to—the formation of a parent/child bond.
- Whether the non-parent took responsibility for the child’s development, care, education, and financial needs.
- Whether the relationship lasted long enough for the child to form a parent/child bond with the non-parent adult.
As you can see, becoming a de facto parent requires more than just a romantic relationship between partners. Instead, there must be an established, long-term bond between adult and child, and will only be granted when continued contact is in the child’s best interest.
This can be an incredibly difficult, uphill battle for anyone, but especially for same sex parents, who may find themselves facing a judge with strong prejudices against their relationship status.
For these reasons it’s much better to establish yourself as a legal parent, as soon as possible, and not wait for a child custody dispute to arise.
Attorneys for Same Sex Parents in California
Parental rights are the same, no matter what type of relationship you’re in. However, for same sex parents, there can sometimes be some additional hurtles to overcome, when it comes to child custody. That’s why it’s so important to have a skilled attorney you can trust.
For more questions about same sex parenting in California, and what this might look like in your situation, we want to hear from you. Call Provinziano & Associates at (310) 820-3500, or get in touch online , and let us help protect your parental rights.