The landmark Supreme Court decision in Obergefell v. Hodges swept away all laws discriminating against same-sex couples, right? Well, not exactly. As the University of Oregon’s Alison Gash (who you may remember from a 2013 Washington Monthly article on gay adoption law) explains in a web exclusive at Ten Miles Square today, state laws governing the custodial rights of non-biological parents leave many people in same-sex relationships in an decidedly less advantageous position than their heterosexual counter-parts, particularly after a divorce.
In many states…a lesbian couple’s only option for shared legal parenthood is through biology or adoption, leaving very little recourse for the non-biological parent in a lesbian relationship. When the non-biological parent is a heterosexual male, his parentage claims rest on a far broader array of criteria….
Gay male couples can be challenged in different ways. Although the path to fatherhood may be more generous, the non-biological father’s legal status may be contested if a court reads fatherhood as requiring a relationship with the biological or legal mother.
In some states discriminatory treatment may simply require a clean-up of laws enacted prior to marriage equality. But as Gash illustrates, a lot of pain will be incurred by parents and children alike until these anomalies are resolved.
