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Divorce Mediation Blog

Same Sex Marriage and Child Custody: An Important Decision

Friday, March 02, 2012

For many years, former husbands and wives on Massachusetts have commonly shared legal custody (major life decision making) of their children. This happens except in unusual cases such those involving domestic abuse, drug or alcohol problems, unavailability or extreme disinterest of one parent. In unmarried parent cases (they out number divorce custody cases now), the rules are different, in that a mother is still presumed to be the custodial parent unless the other parent can prove a clear history of parent cooperation before the start of court involvement. The lack of a marriage is the key difference.

But what about legal custody of children born during same sex marriages? Massachusetts has permitted and facilitated same sex marriage since 2004. This occurred though a Supreme Judicial Court case called Goodridge v. Dept. of Public Health. (Several other states have since followed suit.) The Supreme Judicial Court (SJC) did this because the justices concluded that the state constitution demanded it. The decision was controversial at the time but after nearly eight (8) years, same sex marriage is entrenched and, for the most part, fully accepted here.

But, with marriage comes divorce, and same sex marriages are no exception. So, after that passage of time, same sex marriages have found their way into the divorce courts, and when children are involved, this has resulted in custody matters.

Since the pre-existing law and practice for straight spouses was to encourage joint involvement and decision making for children, why would this not immediately translate to same sex spouse after divorce? The prime reason is biology. To be eligible for joint legal custody, a person has to be a child’s legal parent. Under the law, if a child is born during a marriage of the mother, her husband is presumed to be the child’s legal father, whether or not he, in fact, is the biological the parent. This is because the law wants to encourage “legitimacy” of children where possible,.

When the SJC said that same sex couples could marry in Goodridge, it also commented that certain state statutes should be read in a gender neutral way, that is: “husband” equals “spouse”, regardless of gender. But there are many such statutes, and one of them is the presumption of legitimacy law that we noted above. It says that a child born during a marriage “…shall be considered to be the legitimate child of the mother and such husband”. But the Goodridge case was not about the legitimacy statute. In the very recent case of Della Corte v. Ramirez, this issue arose. The biological mother of a child (Della Corte) claimed that her same sex spouse (Ramirez) could not share legal custody because she was not a legal parent, even though the child was born during their marriage. Della Corte argued that Ramirez could only become the legal parent by adoption since she was not a husband; and she had not adopted the child.

Clearly, Ramirez could not be a biological parent, so unless the legitimacy statute was applied to same sex parents, regardless of gender, Ramirez was out of luck and without custodial rights. Fortunately for Ramirez, the trial judge disagreed with Della Corte. He believed that the Goodridge decision, and its commentary about gender neutrality, required him to rule that Ramirez was accorded the same rights as a husband under the legitimacy law. Therefore, he concluded, she was the child’s legal parent, as that would be the only way to apply the law in a gender neutral way. Since the other facts of the case justified it, he awarded Ramirez joint legal custody, as he would any other parent.

Most lawyers think that this case established, beyond further serious question, that custody matters will be decided by the same rules for all marriages, same sex or otherwise, in Massachusetts, hereafter.



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