Same-Sex Custody Battles Are Shaking Up Courts

Some say laws should evolve to protect 'de facto parents'
By Arden Dier,  Newser Staff
Posted Aug 31, 2015 9:27 AM CDT
Same-Sex Custody Battles Are Shaking Up Courts
In this undated photo provided by Cari Searcy, Searcy sits with partner Kimberly McKeand, right, and their 8-year-old son, Khaya, at their home in Mobile, Ala.   (AP Photo/Courtesy of Cari Searcy)

Same-sex couples aren't just making their mark on marriage, but also on breakups and the subsequent custody battles—so much so that they are "going to revolutionize the court system," a family lawyer tells the New York Post. The paper highlights one of several complicated cases in New York, involving a gay man who donated sperm to his partner's sister so she could serve as a surrogate for the couple. All three agreed the sister would always be part of the children's lives. But the men never married and the partner whose sister carried the baby didn't legally adopt the kids. When the couple broke up, the biological father took the children and moved away, leaving his ex-partner and sister with no legal claim. "It's challenging," says a lawyer. "People's lives are evolving, and the question becomes, how does the law actually step in and protect everybody?"

To be considered a parent in New York, you typically must have a biological connection, go through a legal adoption, or have the "presumption of legitimacy." This would apply to a couple who has a child during a marriage, reports the Post, but it remains to be seen if this criteria extends to married same-sex couples. "The law hasn't kept up, because gay couples have children in different ways," a lawyer says. Some suggest laws should define "de facto parents"—who raise but don't adopt children that aren't related to them—to provide a custodial claim, but issues arise here. "If I have a girlfriend and we break up, she could file for custody of my kids?" asks a lawyer. Though judges traditionally favor women in heterosexual custody battles, same-sex cases are helping eradicate that trend. Judges now tend to focus on who the best caretaker will be for the child. (This odd custody battle involved a turkey baster.)

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