Same-sex Parents in Custody Cases

When considering the word “family”, many people think of “Mom+Dad+2.5 children”--the nuclear family of television sitcom. However, this definition of family is a new interpretation that fit the rapid housing expansion of the Cold War years in the Western world. Conservatives have often decried the breakdown of this definition of family as a primary reason for their opposition to same sex marriage. As this was the predominant family structure for a lengthy period of time, most family law decisions have been written with this paradigm in mind, defining a husband/wife relationship as the norm. However, as gay marriage is legalized nationally, family law must adapt to newer definitions of the word “family”, in order to provide equitable treatment under law for both heterosexual and homosexual couples. These changes stand to impact custodial law, adoption law, divorce law, and benefit law.

Custodial law is one of the first areas that will need to be re-written, because of its impact not just to the parents but to the psychological well-being of the children. Even in a situation where the parents are not divorced, a gay spouse may have no caregiver rights. School systems often require special dispensations for a non-biological parent to be able to access the child's information. Medical facilities cannot authorize treatment on the word of someone not a stepparent or without written consent of the parent. One way that this has been traditionally circumvented is by second-parent-adoption, but if a couple is legally married, then second-parent-adoption has been ruled to be extraneous (Blau). Unfortunately, should the gay spouses be in an area which does not recognize their marriage as legal, then the non-primary par...

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