In the 2015 U.S. Supreme Court case of Obergefell v. Hodges, all state bans on same-sex marriage were deemed to be unconstitutional. As a result of the Obergefell holding, same sex marriage is now rightfully legal in every state across the U.S.
Fortunately for those who live in Colorado, same sex marriage has been legal since 2014. By the time Obergefell came along, Colorado had already stricken the state constitutional ban on same sex marriage, which originally read that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” After the case of Kitchens v. Herbert was decided in late 2014, all existing state bans on the issuance of marriage licenses to same sex couples were lifted. Same sex marriage has been legally recognized in the state of Colorado ever since.
While the allowance of same sex marriage in the state of Colorado seems to be pretty straightforward at first glance, it is important to remember that same sex couples face many of the same relationship hurdles as opposite sex couples. This means that divorces happen among same sex couples, just as they do among opposite sex couples. The difference, however, arises with the question of establishing paternity and child custody.
In any partnership with children, the question of who a child’s legal parent is a tricky and sensitive one. This is especially true when it comes to the issue of same sex marriage. The issue can be further complicated when same sex couples share a child together, but only one of the parents is documented as the legal parent. With same sex marriage being a relatively new legal concept in the state of Colorado, establishing paternity and legal parenthood in same sex marriages is one of the big questions.
What is Establishing Paternity and Why is it Important?
Paternity is a legal relationship established from a child to another parent- most commonly, a father. This legal relationship ensures that in the case of a later divorce, the child is entitled to child support from the paternal party.
Establishing paternity not only makes sure that the child will receive support in the event of a divorce, but the process also ensures that both parents have the legal right to make important decisions for the child in the realm of health, living arrangements, and more. Essentially, establishing legal paternity ensures that in the event of a separation or divorce, the co-parent cannot be entirely cut-off from the child’s life.
Unfortunately for same sex couples, establishing paternity can be extremely complex. This is because it is unlikely that both parties to a same sex marriage are the biological parent of the child, making paternity harder to legally establish.
Family Law Varies By State
With the complexity of state laws and the differences in family structures, it is hard to give broad advice about the establishment of paternity in same sex marriages. Many states, including Colorado, have laws in place that ensure that any children born to a marriage are presumed to be the legal child of both parties to the marriage (both parents), regardless of the genetic bonds involved or the sex of the parents if the child is born during the marriage. Alternatively, the parties to a marriage may both be deemed the legal parents of a partner’s biological child through adoption processes, including second parent or step-parent adoption.
Recent case law can provide an interesting insight to the issue, especially in the case of a same sex marriage with no father. Shortly after Obergefell, the case if McLaughlin v. McLaughlin arose in the Arizona Court of Appeals. Therein, two women had a child through artificial insemination after being married in California. The mothers had executed a joint parenting agreement after the birth of the child, which stated that both women were equal parents of the child. When the couple got divorced and the issue of parenthood arose, the Court determined that the non-biological spouse, one of the mothers, was entitled to presumption of maternity. The key in that case was that both parents had signed a joint parenting agreement.
The issue of whether paternity applies in any same sex marriage can vary based on the context and details of the situation. If you are wondering how and whether you should be concerned about establishing paternity in any marriage, contact our Colorado family law specialists today.
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