Same-Sex Child Custody Disputes To Be Heard By California Supreme Court

By Brian Vargo

Published on July 22, 2005

Current laws aim to protect children of unmarried heterosexual couples from the stigma of illegitimacy by establishing clear parental rights and responsibilities for unmarried parents. Domestic partner laws in California extend the same protection to children of gay parents who are registered as domestic partners. However, no law is in place to afford the same protection to children of gay couples who choose not to register as domestic partners.

Gay rights and children advocates say these laws should absolutely apply to children of unregistered homosexual couples. Deborah Weld, a family attorney in San Francisco who represents many lesbian clients says, "to the child, a parent is parent because that is the person who got up in the night and held them and put Band-Aids on their knees, so it's very unfair to children to draw these distinctions."

However, lower courts have been hesitant to recognize the rights of the non-biological parent in a broken, gay family. Laws designed to establish the parental rights of biological parents cannot be easily transferred to situations in which conception involved the use of reproductive technology and, by default, only one person played a biological role in the conception of the child.

These cases will set important precedent regarding how the state of California treats gay couples who do not register as domestic partners and are being watched closely by gay rights advocates.

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