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What happens now to the children of same-sex married couples when their parents’ divorce?

Now that the same-sex marriage legislation has been approved by the voters of the State of Maryland, we thought it would be a good idea to re-visit the issues surrounding the children of same-sex couples. If you are a frequent reader of our blogs, you may recall on February 28, 2011 we wrote about the current legal status of those children of same-sex couples. The passage of the same-sex marriage legislation in Maryland does not change the legal status of those children. The passage of the current legislation will, however change the legal status of children adopted or born during the course of the marriage of a same-sex couple.

In the State of Maryland, “a child born or conceived during a marriage is presumed to be the legitimate child of both spouses” in accordance with Section 1-206 of the Estates and Trusts Article of the Annotated Code of Maryland. The Code further states that “a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes”. It is my belief that it would follow that that those children born or conceived during a same-sex marriage are the legitimate children of both parents, not only the spouse who gave birth to the child.

In the past when a same sex couple adopted a child in the State of Maryland, only one of them actually adopted the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. It is presently a grey area in our law for same-sex couples who were legally married in another state, but adopted a child in Maryland, whether the adopted child would be legally recognized by the Court as the child of both parents. As of January 1, 2013 when Maryland’s same-sex marriage legislation becomes effective and same-sex couple can marry in our State, children adopted to same-sex married couples will be the children of both parents. Both parents will be on the birth certificate and will be able to make legal decisions for their children.

From my perspective as a family law practitioner, one of the largest areas of impact the same-sex marriage legislation will have on both spouses and their children, will be that the spouses are in the same position as a heterosexual married couple when they divorce with respect to custody issues. Now, both parents, assuming both adopted the child or the child was conceived/born during the marriage, will be on equal footing when it comes to child custody, child access, and child support issues. No longer will one parent be considered a third party in the eyes of the law. “Third party” status in the State of Maryland requires proof that the legal parent is unfit or that other exceptional circumstances exist. As explained in our July 1, 2010 blog, a finding of exceptional circumstances requires a court to make a finding that without visitation there will be actual harm to the child. In my opinion and experience the exceptional circumstances burden is a difficult standard to meet and prove. Same-sex married couples who have children during the course of the marriage will now be subject to the same legal standards that apply to heterosexual married couples who are going through a custodial dispute and no longer treated as a third party if there is a custodial dispute.

For more information on same-sex divorce contact an experienced Maryland Divorce Attorney.