Same Sex Child Custody

February 10, 2015 6:51 pm

On October 6, 2014, same- sex marriage became legal in the State of Oklahoma. This followed the United States Supreme Court’s decision not to review the 10th Circuit’s July 18, 2014 decision. It upheld the Northern District of Oklahoma’s January 14, 2014 decision to overrule the ban on same-sex marriages.  If you need an explanation of recent Supreme Court ruling call our same sex child custody lawyers Tulsa today.Same Sex Child Custody Lawyers Tulsa

Now with same-sex marriage firmly established in Oklahoma, so too is same-sex divorce in Oklahoma. This will present issues with same sex child custody, visitation and adoption. Biologically speaking, a child can only have two parents, a mother and a father.  This means that within a same-sex relationship with children, one of the individuals may not have a right to assert parentage. But several recently decided cases establish that the non-biological parent may have standing  to seek custody and visitation.

Important Cases in Same Sex Child Custody:

In Eldridge v. Taylor, the parties lived together in a family relationship for 10 years.  Taylor was the biological mother of the parties’ two children. At the birth of each child they entered into a co-parenting agreement, which gave both parental rights and shared parenting. Over the 10 year relationship, the children were held out to everyone as Eldridge’s children. The parties separated and later dissolved their civil union. Regardless, they continued to share parenting duties, with Eldridge paying child support. Eldridge also continued to provide care, enrolled them in school, and continued as a parent on legal records.

However, when things fell apart, Eldridge sued to enforce the parenting contracts.  Initially, the district court denied her suit, determining that Eldridge did not have standing. The court relied on this reasoning she was not a biological parent of the children.  Taylor also argued that the parenting contracts violated public policy.  The supreme court reversed this decision, stating that public policy cannot derive from an unconstitutional provision. The court continued  by stating that Eldridge indeed had standing to enforce the contract.  Standing arises through a public policy in allowing parents to relinquish all or some of their parental rights. This is done in Oklahoma without terminating those rights.

The parenting contract between them invalidates only if  it was not in the best interest of their children.  While the matter remanded back to district court for a best interest hearing, Eldridge’s burden eased. This is true because of the significant involvement she had with raising the children.

Other Cases in Same Sex Marriage and Child Custody:

No Formal Agreement

Dubose v. North provides a similar situation in Eldridge v. Taylor, but this time the parties did not have any form of a contractual agreement.  In the Dubose v. North  case the parties began living together in 2001, with North becoming pregnant in 2007.  They co-parented the child until the parties separated in 2012 and by 2013. At this time North refused Dubose any contact with the child.  Because of fear regarding the “Don’t Ask, Don’t Tell” policy of the Military and any potential impact on both of their careers, the parties did not enter into any co-parenting agreement.  Dubose sought relief by filing a parentage action. This action dismissed at both the district court and appellate level. The court reasoned that she lacked standing as the Uniform Parentage Act allows for only one mother and father.

More Same-sex Step-Parent Adoption information is here.

While arguably during their relationship, there was some sort of oral contract to conceive and raise a child together, this was unenforceable.  The court in Dubose did not discuss whether or not as a matter of equity, the established support and relationship between the child and Dubose, that a continued relationship would be in the best interest of the child.

Parenting Contracts: Expressed or Implied

In Park v. Decker, the parties were involved in a 10 year relationship in which children were born.  After separation, the biological mother prevented access to the children to her former partner, prompting a suit for visitation, but not one for a determination of parentage.  The factual issues presented where whether or not the parties had an enforceable contract, either express or implied, concerning the co-parenting of the children, or whether as a matter of equity, the interest of the children, to determine that parties entered into an enforceable co-parenting agreement, and of course whether such visitation would be in the best interests of the children.  At appeal, the panel determined that the partner did have standing to sue for visitation, as would any other 3rd party seeking visitation.

Oklahoma Law

Oklahoma’s legislature have not passed any amendments to the statutes regarding parentage, marriage, custody and visitation, that address the necessary changes since the ban on same-sex marriage has been overturned.  Former same-sex couples with child custody and visitation issues will have to rely on forthcoming court decisions in the meantime.

What can be learned from the cases discussed above is the following:  have an Oklahoma family law attorney draft and prepare a co-parenting agreement and also establish a strong and lasting relationship with the children so that if the co-parenting agreement is not valid, the right to seek 3rd party visitation is still preserved.

Contact Our Same Sex Child Custody Lawyers Tulsa Today:

If you are a same sex couple facing child custody issues call our same sex child custody lawyers Tulsa today. We can help with all family law issues that surround same sex marriage and divorce. This includes same sex child custody and visitation issues. The law has changed but attitudes are still evolving. Call today and get a free consultation with one of our family law attorneys.