Article by Daniel A. Levy, Esq.

When I consult with clients in my Family Court practice, I get more and more questions from people who are ending a same-sex relationship. Some of the questions are very straightforward and simple to answer. Some are not. Issues involving children are usually in the category of “not simple to answer.”

Obviously, when a same-sex couple has children they cannot both be biological parents. Sometimes the couple adopts a child. Sometimes one person had a child from a previous relationship. Sometimes they have a child using artificial insemination or a surrogate is involved. What I would like to address are those situations where no adoption is involved – those are easy situations as far as legal rights go because once there is an adoption, the adoptive parent has the exact same rights as a biological parent normally would have.

The first thing to understand is that the law is very concerned with biology. Basically, biological parents are seen in the eyes of the law as having a certain bundle of rights, which are not disturbed absent a court order. If you are not a biological parent, you do not have any rights to a child unless a court order says otherwise. This is very important because a couple who has been together for a long time with a child would very much consider both people to be parents of the child. The law does not agree. With a lesbian couple, only the person who physically birthed the child is the parent. With a gay couple, only the man who’s sperm was used is considered a parent. This is true even if the child was born as a result of a gestational surrogate (i.e. where the egg is used from a woman other than the woman carrying the child to term, typically from a relative of the man other than the man who’s sperm was used). Therefore, by default, if a same-sex couple is breaking up only the biological parent has rights to the child.

But that does not mean that the non-biological parent will never have any rights. Depending on the situation, the non-biological parent may still have rights if a judge agrees that they are a “psychological parent” in which a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood. This arises when the biological parent is out of the picture because they are merely a donor or surrogate.

The court sets forth a four-pronged test that the third party must meet to be a psychological parent. First, the legal parent must have consented to and fostered the relationship between the third party and the child. The prong makes the legal parent a participant in the creation of the bond and once created, the third party’s status as a psychological parent cannot be unilaterally terminated the legal parent. Second, the child and the third party must have actually resided with each other in the same household. Third, the third party must have actually assumed the obligations of parenthood. This is determined by “the nature, quality, and extent of the functions undertaken by the third party and the response of the child to that nurturance.” The fourth and final prong requires the third party to have been in the parental role long enough for a parent-child bond to have been forged. This prong is the most important and the focus is not on the amount of time but on the nature of the relationship that has developed.

As you can imagine, this is a very fact-sensitive analysis and therefore, these claims are typically very complicated. And in fact, just proving those factors is not even the end of the inquiry. Once the Court has determined that a party is a “psychological parent” to a child, a best interest analysis must be conducted, no different than if two legal/biological parents were in conflict. Because of the complexities of these issues, anyone involved in such a dispute would be wise to seek legal advice on the subject before taking any action on their own.