When parentage is established, the legal rights of each of the child’s parents are recognized. That means both have the right to custody and visitation and to make decisions concerning the child's care and upbringing. Depending on their situation, same-sex couples, whether married or unmarried, may need to establish parentage to be considered their child’s legal parents. They may do this by signing a Declaration of Parentage form or getting a court order. However, the couple might not need to establish parentage if the other person in the relationship is the child’s presumed parent.
Establishing a legal parental relationship for same-sex couples can be challenging. A lot of nuances in the law exist, and different situations have separate requirements. If you are going through the process of establishing parentage, speak with a family law attorney about your case.
At Claery & Hammond, LLP, our San Diego delivers compassionate guidance throughout vital and emotional cases. Schedule a consultation with us by calling (310) 817-6904 or submitting an online contact form today.
What Does It Mean to Establish Parentage?
To establish parentage means to be officially recognized as a child’s legal parent. It is necessary when the child’s parents were not married when the child was conceived or born.
Being recognized as a child’s legal parent ensures that both individuals in the child’s life get to provide for their care and upbringing. It also allows the parents to have a stable relationship with the child, as the court can make orders concerning child custody and visitation rights, as well as child support (if necessary).
How Does a Same-Sex Couple Establish Parentage?
The parentage laws applying to situations involving an unmarried man and woman are similar to those concerning an unmarried or married same-sex couple. If the same-sex couple’s situation permits, they can go through one of two avenues to establish parentage.
The first method of establishing parentage for some same-sex couples is signing a Declaration of Parentage form. The document can be signed at the time of the child’s birth or any time after and must be filed with the California Department of Child Support Services.
A voluntarily signed and properly submitted Declaration of Parentage form has the same effect as a court order for parentage. The other individual is legally recognized as the child’s parent.
A same-sex couple is eligible to sign the Declaration to establish parentage if they are married or unmarried and conceived a child by a sperm and/or egg donation from someone who is not the spouse of the person who gave birth. The couple cannot use the form if their situation involves surrogacy.
The other method for establishing parentage is getting a court order. This avenue is necessary when the couple was not married and did not sign the Declaration of Parentage or was not eligible to sign it. A parentage case is not necessary if the individuals were in a same-sex marriage or registered domestic partnership when the child was conceived or born.
To start the court process for parentage, one of the child’s parents must prepare and submit certain forms to the court. After filing with the court, they must serve a copy of the documents to the other parent. The couple may have to prove to the judge that the individual seeking to establish parentage was intended to be the child’s parent. Depending on the situation, the couple may have to appear in court before a judge signs the judgment.
For example, if the other parent did not respond after being served or they responded but the couple had an agreement in place, they do not have to go to court unless a problem existed with the documents.
However, a court appearance is necessary if the couple does not agree on the following:
- Parentage,
- Custody,
- Visitation, and/or
- Support.
What Is a Presumed Parent?
A presumed parent is someone the law recognizes as a child’s other parent. They have the same rights and responsibilities as a birth parent.
Persons in a same-sex relationship or registered domestic partnership are presumed to be a child’s legal parent if:
- The individuals were married at the time the child was conceived or born,
- The couple believed that they were in a valid marriage when the child was conceived or born,
- The couple got married after the child was born and both parents’ names are on the birth certificate or the other parent agreed to support the child, or
- The other parent raised the child as their own and acted as if the child were theirs.
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The information in this blog briefly discusses the ways of establishing parentage for same-sex couples in California. As mentioned before, each situation is unique and must be thoroughly evaluated to determine the path necessary for being recognized as a child’s legal parent.
If you need help with your case in San Diego, please contact Claery & Hammond, LLP at (310) 817-6904.