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Is Marital Presumption Of Parentage Being Applied Unequally?

On Behalf of | Jan 27, 2021 | Child Custody

For heterosexual couples, marital presumption of parentage in California is relatively simple: The law assumes that the spouse of a biological mother is also a child’s parent. However, the legal application of such laws can be unclear for same-sex couples. If you’re in a same-sex marriage, it’s important to know what marital presumption of parenthood means for you.

Historical basis of parentage

In the past, marital presumption of parentage was partly rooted in the assumption that a woman’s husband was the biological father of her child. In addition, the law stated that parents have numerous rights and responsibilities. It would be impractical to make each husband prove that he deserves parental rights, so it was simpler to grant such rights by merit of marriage to the mother.

Why same-sex presumption of parentage matters

For same-sex couples, determining legal parentage may not be so straightforward. Marital presumption of parentage is extremely important when it comes to the following situations:

  • If a U.S. citizen is not the biological parent of their spouse’s child, their child may not receive U.S. citizenship.
  • In a divorce, marital presumption of parentage makes it easier for the non-birthing spouse to seek custody whether full or shared.

Current application of laws

The Supreme Court’s Obergefell decision states that same-sex couples deserve all the same marital rights as opposite-sex couples. This implies that marital presumption of parentage should be available to married couples regardless of biology. Subsequent Supreme Court decisions have clarified and reinforced this right.

Unfortunately, not every law has caught up. For example, the Immigration and Nationality Act doesn’t automatically recognize parentage without a biological link. If you’re experiencing problems asserting your rights in relation to marital presumption of parentage, you might find a family law attorney helpful.