Barbara J. Katzenberg, Attorney at Law
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Same-sex family law issues related to child custody prevalent

Some nontraditional families nationwide, including some in Massachusetts, are finding out that some family laws related to their circumstances have not been updated. The fact that same-sex couples now have the constitutional right to get married does not address any family law issues related to matters such as child custody and visitation rights. A former same-sex couple is fighting a child custody battle in another state where reproductive technology, such as donor eggs, surrogacy and donor sperm, are not addressed in the laws.

The case involves two women who were in a 14-year relationship. Because their state did not allow gay marriages, they formed a civil union and had two children -- now ages 6 and 8. After their relationship ended, the mother who carried the children asked the court to terminate the other mother's legal guardianship.

One of the legal problems that may arise is the fact that one of the two children has no biological connection to either parent. Their first child was conceived through in vitro fertilization and carried by the mother who now wants sole custody or guardianship. However, for the second child, the sperm and eggs used to conceive the child were obtained from donors, and although the same woman carried the child, in the eyes of the law, there is no biological link, and he may be removed from her care.

This case underscores the dilemmas some same-sex couples or former same-sex couples may encounter under their state's family law. Although some Massachusetts laws may have been modified to accommodate LGBT issues, relocation to another state may result in legal matters when couples decide to separate. Because these laws are currently under the magnifying glass, individuals may not be aware of changes taking place. For this reason, the advice and guidance of an experienced family law attorney who also focuses on LGBT issues may be invaluable to resolve issues without entering into extended and expensive legal battles.

Source: fox2detroit.com, "Same-sex couple's custody battle hampered by outdated state laws", Taryn Asher, March 18, 2016

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