Child Custody FAQs for LGBTQ+ Couples

Gay male couple and kids having fun on the beach during summer vacation using soap bubble toy - Concept for child custody matters for LGBTQ+ couples who are considering divorce.

While there is no difference between a heterosexual divorce and a same-sex divorce, unique issues can arise when it comes to child custody matters for LGBTQ+ couples. For instance, you might be wondering who has custody rights if you started a family using assisted reproductive technology. You might also have questions about how parentage is established and whether co-parent adoption is necessary. Here are some of the most frequently asked questions LQBTQ+ families in Missouri have when it comes to child custody matters.

Does Marriage Equality Convey Parental Rights?

While the 2015 U.S. Supreme Court case Obergefell v. Hodges requires all 50 states, including Missouri, to recognize same-sex marriage, marriage equality doesn’t convey parental rights. Since marriage alone doesn’t give a non-biological parent full parental rights, you should consider establishing them through adoption or a legal order of parentage. Without taking the necessary legal measures to protect your parental rights, you could face challenges not only in divorce — but also in seeking medical treatment or even picking them up from school.

How is Parentage Established for LGBTQ+ Couples in Missouri?

In Missouri, parentage must be established legally through the courts. While a woman is usually able to establish maternity by proving she gave birth to the child, paternity is not always straightforward. There is a presumption of paternity if the father is married to the mother or the child is born within 300 days of divorce. But since many same-sex couples start families through assisted reproduction, these presumptions can be more complex.

In 2021, the Missouri Court of Appeals for the Eastern District clarified the issue of parentage for same-sex couples in Schaberg v. Schaberg. In that case, the court held that parents in same-sex marriages have the same rights to pursue child custody, regardless of their gender. Missouri law grants the right for the non-birthing parent to be presumed a legal parent — regardless of how the child was conceived.

What is Co-Parent Adoption?

In cases where a married same-sex couple conceives a child through assisted reproductive technology, the biological parent may be deemed the sole legal parent. When a same-sex couple is not married, the biological parent will be considered the only legal parent. To avoid any issues when it comes to asserting parental rights, the biological parent’s spouse might consider filing for co-parent adoption to obtain an adoption decree that recognizes both partners as the child’s legal parents. This process is the same as stepparent adoption for heterosexual married couples.

How Does the Presumption of Parentage Work When Assisted Reproductive Technology is Used?

Assisted reproductive technology refers to the use of medical technology to assist with pregnancy and can include methods such as artificial insemination, in vitro fertilization, surrogacy, use of an egg donor, sperm donor, or embryo donor. While there are no laws that address the presumption of parentage when it comes to surrogacy specifically, it’s important to enter into a written contract outlining the expectations, intentions, and responsibilities of all parties. But even if an agreement is in place, same-sex parents might consider obtaining an adoption decree since it is irrefutable proof of parentage — naming a spouse on a birth certificate isn’t always sufficient to establish their parental rights.

Although there is no statute or case law that addresses parentage regarding surrogacy, artificial insemination is specifically addressed in the Missouri Uniform Parentage Act. The statute states that the husband of a woman who has undergone artificial insemination will be treated by law as if he were the natural child of the father. This law also applies to same-sex married couples.

How Are Custody Rights Determined in the Event of Divorce?

In a same-sex divorce, custody rights apply just as they would in a heterosexual divorce. When both spouses are the legally recognized parents of the child, they may both assert custody rights during divorce proceedings. Parents are free to work out an agreement pertaining to custody between themselves outside of court — or if they cannot settle the matter, a judge will decide the matter. Under Missouri law, a judge will evaluate a number of factors and apply the “best interests of the child” standard to determine the outcome.

In Missouri, both parents are encouraged to take an active role in a child’s life and a judge will award joint custody whenever possible. Similarly, the law recognizes that both parents have a financial obligation to support their child. Accordingly, a non-custodial parent who is recognized as the child’s legal parent may be ordered to make monthly child support payments to the custodial parent for the child’s benefit.

Contact an Experienced Missouri Family Law Attorney

LGBTQ+ families face unique issues when it comes to child custody matters and it’s vital to have the representation of a skillful attorney who can discuss your legal rights and options. Divorce and family law attorney Mark A. Wortman provides reliable representation to clients in the greater Kansas City, Missouri area who are facing a wide variety of matrimonial and family law matters. To schedule a confidential consultation to learn how he can assist you, please contact him today online or by calling (816) 523-6100.