The journey to having children looks different for every queer couple. If you and your co-parent have decided to part ways, it is important to understand how the formation of your family may impact your parental rights. Parental rights are a cornerstone of family law, helping ensure children maintain strong relationships with their parents. For LGBTQ+ couples in California, navigating these rights can be a nuanced process, especially when issues of biological and legal parentage arise. Let’s break down the key considerations to help you understand your rights and protect your family’s interests.
Establishing Legal Parenthood
For a court to make orders regarding child custody and visitation, it must first establish parentage. Once the legal parents of a child are established, the court can make necessary custody orders. California law recognizes diverse family structures, providing multiple avenues for establishing parental rights:
Birth Certificates and Presumptions of Parenthood
Under California law, both spouses in a same-sex marriage are presumed to be the legal parents of a child born during the marriage. This presumption applies regardless of biological connection, as long as the couple was married at the time of the child’s birth.
For unmarried couples, additional steps may be necessary. Both parents can sign a Voluntary Declaration of Parentage (VDOP) at the hospital, ensuring their names are included on the child’s birth certificate. A VDOP, when properly executed and filed with the California Department of Child Support Services, has the same force and effect as a judgment of parentage by a court
Adoption
Even with presumptive parenthood, some LGBTQ+ couples choose to pursue second-parent or stepparent adoption. This provides an additional layer of legal security, particularly when traveling to states or countries with less robust protections for queer families. Through this process, a non-biological parent formally adopts the child, establishing a legal relationship.
Surrogacy and Assisted Reproduction
Couples who use surrogacy or assisted reproduction should ensure all parties sign appropriate legal agreements regarding their parental rights. California’s Uniform Parentage Act allows intended parents—including those in same-sex or other LGBTQ+ relationships—to establish parentage before the child is born, safeguarding parental rights from the outset.
Does Being a Biological Parent Matter?
In California, biological parentage is one factor in determining parental rights, but it is not the sole determinant. The state places significant emphasis on the “presumed parent” status and the best interests of the child. Here are some key points to consider:
Biological Connection: A biological link may simplify the process of establishing parentage, especially in cases where there is no dispute over parental rights. However, biological connection alone does not automatically confer exclusive parental rights. There are plenty of situations where the person who gives birth to a child is not the child’s legal parent. This is the case in adoption and surrogacy cases.
Legal Parentage: Non-biological parents can achieve legal parentage through methods described above like adoption, marriage presumptions, or parentage orders. Legal parentage offers the same rights and responsibilities as biological parentage under California law.
Intent to Parent: For families formed through surrogacy or assisted reproduction, the intent to parent often holds significant weight. Courts look at legal agreements and the actions of both parents to determine who is recognized as the child’s legal parents. Case law supports the ability of LGBTQ+ couples to obtain prebirth judgments of parentage.
Genetic Testing: A court may order genetic testing upon its own motion or upon the motion of any party if there is a dispute regarding biological parentage.
Custody and Parenting Time
California family courts prioritize the best interests of the child when determining custody and visitation arrangements. LGBTQ+ parents are afforded the same rights and responsibilities as any other parents. Key factors courts may consider include:
- The child’s relationship with each parent.
- The ability of each parent to provide stability, safety, and support.
- Evidence of cooperation and co-parenting.
Your sexuality, gender-identity, or relationship structure should not be considered by a court when making custody determinations. It is best to approach custody disputes with documented evidence of involvement in your child’s life, such as medical appointments, school meetings, or extracurricular activities. Your attorney should not be concerned with your sexual orientation, gender-identity, or relationship structure either. Make sure to seek out a family law attorney who will respect and advocate for who you are.
Protecting Parental Rights
To safeguard your parental rights, consider the following steps:
Seek Legal Advice: Consult a family law attorney with experience in LGBTQ+ issues to address your specific circumstances.
Document Agreements: If you and your partner are not married, create written agreements detailing parenting responsibilities and decision-making authority.
Secure Legal Recognition: Pursue adoption or parentage orders to solidify your legal status, particularly if your family plans to relocate.
Challenges to Be Aware Of
While California law is generally inclusive, challenges can arise in certain scenarios, such as disputes over parental fitness or attempts to invalidate non-biological parentage. Being proactive and ensuring legal protections are in place can prevent such disputes from undermining your family’s stability. You do not need to compromise who you are to secure your legal rights.
Conclusion
LGBTQ+ couples in California enjoy robust protections under state law but taking proactive steps to establish and safeguard parental rights is essential. By understanding the legal landscape and seeking professional guidance, you can ensure your family is protected no matter what challenges arise.
If you have questions or need assistance with your case, consult an experienced family law attorney. At Cage & Miles, we have a dedicated team of out and proud attorneys who can help explain your options and navigate your unique circumstances.
Contact our office today to schedule a free consultation with a knowledgeable member of our LGBTQ+ legal team!
