Since the U.S. Supreme Court’s June 2015 decision that legalized same-sex marriage across the country, it is natural to assume that parenting within same-sex marriages is now on equal footing with traditional marriages.
In fact, the decision unleashed some legal issues to same-sex parenting in some states, but each Denville child custody attorney at our firm can assure clients that those issues are not generally a concern for same-sex couples who were married and reside in New Jersey.
That said, virtually every set of circumstances has unique aspects, particularly for families that might move out of state in the future. Until the laws pertaining to all issues related to same-sex marriage become more consistent across the country, the involved parties still need to understand how the laws in this state and others could affect parenting issues.
Understanding the NJ Presumption of Paternity
It is commonly known that NJ law (Section 9:17-43) presumes paternity on the part of a man who was married to (or attempted to marry) a mother at the time of a child’s birth or within a specified period before and after the birth. The statute language specifically refers to men and fathers.
However, since the time that same-sex marriage became legal in NJ, parents in civil unions or same-sex marriages benefitted from the same presumption, even when they had no biological connection to the child.
The law cites a number of specific conditions when the law presumes paternity. The main points are as follows:
- The parties were married at or near the time of birth.
- The parties attempted to marry before the birth, even if the marriage could potentially be declared invalid.
- The parties attempted to marry after the birth, even if the marriage could potentially be declared invalid, essentially provided that both parents identify themselves as parents and display specific parental responsibilities.
Clearly, the original intent of the law was to establish a biological connection between a man and a child. Still, even though only one partner can have a biological connection to a child born out of a same-sex marriage, the same principles apply to the other partner. Of course, many other rules apply pertaining to surrogate births and other circumstances.
Divorce Can Add Potential Complexities
Same-sex couples who marry in NJ retain parenting rights in the event that they later divorce within the state — assuming that no situation exists that might eliminate or limit parenting rights in any type of marriage. However, since the law is still quite new, any number of situations can arise if same-sex couples with children attempt to divorce in another state.
While not necessarily true for out-of-state civil unions, all states must now recognize same-sex marriages and permit divorces, regardless of the state of marriage. Unfortunately, some states may be several steps behind the new norm when deciding parenting issues for divorcing same-sex couples.
For example, the courts in some states must recognize the parental rights of individuals who have taken the extra step of legally adopting their children, but they may not recognize the presumptions established in New Jersey.
The legislative process is not a quick one, so issues like these may not be consistent in all states for a prolonged time period. The attorneys at Riordan & Associates, LLC recommend that same-sex couples seek legal guidance, particularly when they have children and want to move out of state. We can offer needed support based on the unique circumstances of any family. Call us or use our convenient online contact form.