How Does Presumption of Parenthood Work in a Same-Sex Marriage?

parenthood in same-sex marriage

When a married couple with minor children gets a divorce in Missouri, any child born to the spouses must be part of the case unless they are already subject to an order for child support and custody from another court. As the concept of marriage has expanded in recent years, so has our legal system’s understanding of parenthood. Same-sex marriage has led to same-sex divorce. The legal presumption of parenthood must adapt to situations where the two spouses are both parents of a child, but they are not both “biological” parents. A recent decision by a Missouri appellate court addressed this issue in a divorce involving two women. The court affirmed a decision awarding sole legal custody to the woman who was not the child’s biological mother.

Presumption of Parenthood in Opposite–Sex Marriages in Missouri

Traditionally, Missouri and other states recognized one mother and one father for a child. Those two individuals would have the primary rights and duties of parenthood. Missouri’s presumption of parenthood recognizes situations where, at least traditionally, two people would be most likely to be a child’s biological parents.

While state law protects parental rights regardless of whether the parents are married to each other, marriage is a big part of the presumption of parenthood. A woman — using the “traditional” definition of that term — may establish that she is a child’s mother by showing evidence that she gave birth to the child, or by other means that may apply to either parent. State law presumes a man to be the father of a child when:

  • The child is born during the marriage; or
  • The child is born within three hundred days of the termination of the marriage.

Same-Sex Marriage in Missouri

Same-sex marriage became legal throughout all of Missouri in 2015 after the Supreme Court’s decision in Obergefell v. Hodges. Parts of Missouri were ahead of the curve on this issue. Rulings from federal courts in Kansas City and St. Louis held a state ban on same-sex marriage unconstitutional in 2014. Jackson County, the City of St. Louis, and St. Louis County all began issuing marriage licenses to same-sex couples as a result. The Obergefell decision arrived the following year.

Presumption of Parenthood in a Recent Same-Sex Divorce

A recent decision by the Missouri Court of Appeals, Schaberg v. Schaberg, addressed the presumption of paternity in a same-sex divorce.

The Divorce

The two former spouses, D and J, got married in January 2017. According to the court’s opinion, they had agreed before getting married that when they were ready to start a family, they would select a sperm donor, and J would be the child’s biological mother. This plan resulted in the birth of a daughter.

D filed for divorce in April 2018, and requested sole physical and legal custody of the child. J filed a counter-petition three months later, asking for joint custody. The court appointed a guardian ad litem. After trial, the court followed the guardian ad litem’s recommendations, awarding joint physical custody to both parties, but sole legal custody to D.

The Appeal

J claimed on appeal that D had no standing to request custody or child support from the court since she is not the child’s biological parent. “Standing” is a legal concept which requires a person to show some right to bring a claim in court. In family law cases involving children, a person must have a recognized legal relationship to the child. Grandparents, for example, can request visitation rights. Parents automatically have standing in a suit involving child custody. J’s appeal essentially claimed that D is not legally a “parent” since she does not have a biological relationship to the child. The court disagreed.

The Ruling

In ruling for D on this issue, the court noted that J did not object to characterizing D as a parent at trial. She even asked the trial court to award them joint custody. The court stated its view rather bluntly that J “only now complains of [D’s] lack of standing because she is not satisfied with the trial court’s judgment.” Still, the court examined the claim in greater depth.

J’s argument required the court to interpret the statute that sets out the presumption of parentage. The statute specifically uses masculine language, stating that “[a] man shall be presumed to be the natural father of a child if” he meets certain criteria. This would seem to exclude D. The court, however, cited another provision of Missouri law, which states that whenever a statute uses “words importing…the masculine gender,” this includes “females as well as males.”

A “gender-neutral reading” of the presumed parentage statute, the court held, “leaves no question that [D] is the presumed natural parent of Daughter.” The statute “​​grants married couples the privilege of assuming that the non-birthing spouse is a natural parent” when the child is born during the marriage. This applies to same-sex couples just like it does in opposite-sex marriages, the court held.

How This Recent Case Might Affect Other Same-Sex Divorces in Missouri

The Schaberg ruling could have a substantial impact on future same-sex divorces in Missouri that involve minor children. It has the potential to remove a major complication affecting the rights of non-biological parents in same-sex divorces. It acknowledges that the spouse who did not make a biological contribution to the child’s birth can still fulfill every other aspect of the role of a parent, and that this spouse should have just as much right as the other to seek custody.

Mark A. Wortman is a Kansas City family lawyer. He has dedicated 100% of his practice to helping people who are dealing with difficult family law issues like divorce, child support, and child custody. Please contact us today online or at (816) 523-6100 to schedule a confidential consultation to discuss your case.

Mark A. Wortman

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Kansas City family law attorney Mark A. Wortman handles only divorce and family law matters, and practices only in the State of Missouri. Due to this specialty, Mark Wortman has handled thousands of Missouri divorce and family cases and has practiced… Read More