Effect of same-sex marriage on family law
At the end of the 2015 Supreme Court of the United States term, the Court legalized same-sex marriage nationwide. Family law is one area that will have to be addressed state by state. By looking at how state courts and the Illinois General Assembly addressed the issue of same-sex parents, state legislatures can examine the ways to adapt family laws.
The Court legalized same-sex marriage in June 2015, holding that same-sex couples have a fundamental right to marry and to have those marriages recognized in another state.1 Two principles of the Court’s marriage jurisprudence are that the right supports committed couples and “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”2 The Court mentioned one couple who could not marry in Michigan and only one partner could adopt the children.3 If an emergency occurred or the legal parent died, the children would be left with no legal parent, as the other parent has no legal rights to the children.4 By treating same-sex couples as lesser and denying them the right to marry, the laws harmed the couples’ children because their parents did not have the same rights as other parents.5 The Seventh Circuit was similarly concerned about the children of same-sex couples feeling the effects of discrimination and knowing their parents are somehow lesser.6 Family law is one area of the law that is affected by same-sex marriage.
One legal issue that same sex parents faced was getting states to recognize adoptions from other states or family court judgments from other states. This usually arose in divorce and custody cases.7 In V.L. v. E.K., the Supreme Court held that states must recognize family court judgments, including adoptions, from out of state courts that had jurisdiction.8
Another issue is listing both parents on the birth certificate. After same-sex marriage became legal in Iowa, the Iowa Department of Public Health did not allow same-sex parents to both be listed on the birth certificate.9 This policy was forced to change because it denied equal protection to lesbian parents by not listing married lesbian parents who used sperm donors on birth certificates while at the same time listing married opposite sex parents who also used sperm donors.10 The Iowa Supreme Court interpreted Iowa’s presumption of parentage statute as applying to same-sex parents as well as opposite sex parents. A similar case is being litigated in Florida.11 State officials and lawmakers could attempt to prevent change now that same-sex marriage is legal everywhere, or they could be pro-active and change the laws and policies about birth certificates because discriminating against parents on the basis of their sexual orientation is not likely to survive an Equal Protection challenge.
Another issue is the establishment of parentage, either between married parents or unmarried parents. The Fifth District Appellate Court allowed a former partner to use common law contract principles to seek custody and visitation.12 Illinois enacted changes to the surrogacy law to establish parentage and addressed lesbian parents in the parentage act.13 For the purposes of the surrogacy law, parentage is established by the attorneys representing the surrogate and the intended parents certifying that the parties intended to satisfy the requirements of the parentage act.14 However, this may be amended by the legislature with House Bill 3898, which would amend the parentage act to further spell out how to establish parentage for children born from gestational surrogacy.15 The Parentage Act of 2015 provides that spouses of a birth mother are presumed to be the parent.16 However, it does not apply the presumption to same-sex fathers or address how to establish parentage for unmarried same-sex parents.
Outside of Illinois, other states have a variety of approaches to presumption of parentage for same-sex parents. The Washington court allowed parents to use a common law “de-facto parent” status to establish parentage over children they didn’t give birth to or adopt.17 In some states, courts interpreted existing parentage statutes to apply to unmarried, non-birth parent mothers18 and in one instance, to fathers who used surrogacy.19 In other states after legalization, courts interpreted existing statutes to apply to the non-birth parent mother in custody disputes during divorces.20
There are several approaches states can take when addressing parental rights for same-sex couples as the issues unfold. Because discriminating against parents on the basis of sexual orientation is likely unconstitutional, states will need to address how they deal with various parental rights. First, states should adopt laws or policies to list both parents on birth certificates, regardless of sex. Second, states need to look at options for determining parentage. One option would be to make the law gender neutral with respect to the presumption of parentage in marriage, ie: use “spouse” or direct courts to interpret laws in a gender-neutral manner. Another option would be to extend the presumption to married lesbians. For two men who do not adopt but use surrogacy, state surrogacy laws should be gender-neutral. In the cases of unmarried parents, states may use the concept of “de facto parent,” although states should ensure these de facto parents are interested parties who held the child out as their own and sincerely want to continue parenting the child. These are just a few of the options that states may consider as parental rights of same-sex parents unfold, but the issues will be addressed.