Barbara J. Katzenberg, Attorney at Law
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Family law: Same-sex partner may proceed with child custody case

In June 2015, the U.S. Supreme Court ruled that the Constitution guarantees a right to same-sex marriage. However, numerous issues related to other areas of same-sex family law, such as child custody, remain unsettled. Same-sex parents nationwide, including here in Massachusetts, who have no biological link to their children may have to face several challenges in the event of a relationship ending.

In 2006, a child was born to a same-sex couple in another state. The sperm of a donor was used, and, although the non-birth mother has no biological connection to the child, she shared in caring for the child. The child was placed on her insurance. Even after the relationship ended in 2011, visitation with the child continued. This all changed when the biological mother got married in 2012 and her husband took steps to adopt the child as a stepparent.

The non-biological mother challenged that application and filed a petition for joint custody. In 2014, a county family court ruled that she may seek shared custody, but the ruling was reversed by a Kentucky appellate court. The state's highest court recently ruled that the woman's case to gain shared custody may proceed. The court held that the custody claim must be resolved before the stepfather's adoption petition is considered.

According to family law in Massachusetts and across the country, the best interests of the child is the deciding factor in child custody disputes. While same-sex relationships and social notions have overshadowed this case to date, the justice who wrote the majority opinion remarked that the case is about the right of all people affected by a particular legal dispute have the ability to be heard. The outcome of this case is yet unknown, but the proceedings underscore the fact that same-sex family law issues are often complicated. For this reason, the advocacy of an experienced same-sex family law attorney may be needed.

Source: courier-journal.com, "Same-sex ex-couple's custody case to proceed", Bruce Schreiner, Feb. 18, 2016

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