Presumption of Legitimacy-Gay and Lesbian Parenting and their Rights

There has been considerable flap, including a good deal of misinformation posted on other LGBT issues threads regarding the matter of parental rights in the context of gay marriage. In many, if not all cases, the issue was introduced as a red herring, being off topic and bearing little or no relationship to the intent of the original post. Just as often, it is used to demonstrate how same sex marriages are not equal to opposite sex marriages. In doing so, they fail to distinguish between unequal legal rights and the concept of equality in the broader sense. They pretend that the legal inequality that exists cannot change and it is proof of innate inequality. Moreover, they exaggerate the extent of those legal inequalities, and falsely generalize them across all jurisdictions. They will point to legal language decades old that defines “paternity as meaning the father, and ignore subsequent legislation and court rulings that establish “spouse” as being gender neutral.

The confusing patchwork of laws on parental rights, adoption and marriage from state to state should immediately make any blanket statement about what the law says highly suspect, yet these statements are made all of the time. Therefore, I think it is time to devote a new tread to parental rights and the presumption of parenthood in gay and lesbian relationships. Children are the ones most harmed by the discriminatory laws against their gay and lesbian parents, and it’s the children who will ultimately carry the day in the fight for equality.
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One of the most inane, vicious and flat out false assertions that has been made is that a child born to a married lesbian couple cannot ever be the legal child of the non-biological partner without a second parent adoption and that in order to adopt, there must be an artificial insemination agreement, or the fathers parental rights must be terminated. They continually cite the well-established principle of the presumption of paternity and insist-falsely-that paternity is to be taken literally as meaning a father and only a father. While, unfortunately, in too many jurisdictions the law has lagged behind the reality of social progress, these statements represent a gross over simplified and dumbed down version of the truth.
These tactics are used to portray a situation in which the child must be wrenched away from the father and face an uncertain and unstable future at the hands of someone not their biological parent. Proof that they are unequal to a heterosexual couple who conceive a child together and, therefore, these lesbians have no business getting married, leave alone having a child! Somehow, they are also unequal and inferior to the heterosexual couple who conceive a child through artificial insemination, or where one parent is not related by blood, but I won’t try to explain how, because I really cannot, and neither can they. And while the presumption of parenthood afforded the non biological lesbian partner can be challenge, the same is true with a heterosexual couple. Again, the “inequality” is manufactured.

Now for some truth and reality:

Subsequently:

“…..even if conceived through artificial insemination. In other words, regardless of whether or not artificial insemination was a factor. The state law that the judge refers to here is the law that establishes the presumption of paternity for heterosexual couples and pre dates the Marriage equality act. (see Below) This Judge then applied it to the same sex couple.

Just months later another New York court had to consider whether the presumptions of legitimacy applied to married same sex parents, this time in the context of a divorce proceeding. http://www.nycourts.gov/reporter/3dseries/2014/2014_24122.htm


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Yes, the case does involve artificial insemination. However, there is ample evidence that the ruling that supports the view that although the birth was due to artificial insemination, that was not the only or even the principal reason for the ruling establishing the non-biological spouse as a legal parent:

Not a word about artificial insemination. There is much more in this lengthy ruling. Here is just one more important excerpt:

Other states also presume that a child born to a married lesbian couple is the legitimate child of both parties

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While this is not intended to be a comprehensive summary of all cases, it should be sufficient to establish that the principle of presumption works equally well for same sex couples as it does for traditional couples.
So far, we have been, for the most part, talking about lesbians having children. Gay men pose a slightly different issue as they must use a surrogate. Any couple who has a child through surrogacy needs to go through the legal process of terminating and establishing the intended parental rights. Laws for establishing parental rights differ from state to state, so getting advice from your selected lawyer is imperative. So the issue of presumption doesn’t apply to gay men. However, the same is true of an opposite sex couple who use a surrogate because the woman can’t carry a child. Again, the gay couple are not different. They are not inferior, but rather very much like the straight couple. http://blog.surrogates-eggdonors.com/surrogacy-gay-couples-what/

So where do we go from here? Do we continue to cite the laws that discriminate against gays-either by design or omission- as proof that they are unequal and should not be caring for children? Should we continue to ignore the fact that they are already caring for children and those children suffer when the parents do not have equal rights? Can anyone justify denying children the security of have married parents who are both legally responsible for the child just to avoid granting equality to the adults? Or, do we, as a society, finally get our priorities straight and clean up this mess state by state? Anyone who is opposed to doing so, opposed to full parental and marital rights for gays, but claims to care about the children is a despicable hypocrite.

 

perhaps the topic can be compartmentalized

example

if a female has children, there is no dad on record or deceased, a male partner may adopt those children and now has legal responsibility

so, remove the sexual act part and it's fair and equal. 2 women or 2 men cannot sire a child together but there is a vehicle to allow adoption much like with the male/female

My wife was adopted, knows her birth mother but only has 1 "real mother" and that is the woman who raised her, anguished over her (especially when I showed up), cared for her etc.

Our children only have 2 grandmothers, not 3.



With respect to adoption by those living a homosexual life or even single people; why not?

If children are first given to a male/female couple who are vetted, then that is best.

If others are also vetted and want to raise some kids, then God bless them and let them.

 

Thats because if artificial insemination didnt occur, the child was likely conceived by the husband engaging in sexual relations with his wife. We know for a fact in the case of a lesbian couple it WAS NOT conceived by the lesbians engaged in sexual relations with each other. Thats why only a man is presumed to be a father.

 

and that would be correct

 

Either you have a serious problem with reading comprehension or you are seriously delusional. Which is it.? The upshot of this ruling is, that if a lesbian woman got pregnant, say by a male friend( by whatever means they choose) with no formal agreement, that woman and her partner, the non biological parent, are in fact the legal parents if they are married. What part of that are you not able or willing to understand?

I told you that you were NOT invited here.

 

But the lesbian spouse is not the parent. The man is both the biological and legal father. If the lesbian spouse wanted to adopt the child, she would need the permission of the father.

 

SHE DOES NOT NEED TO ADOPT. SHE IS ALREADY THE LEGAL PARENT( except for the purpose of retaining her rights if travelling to a jurisdiction that does not recognize the marriage) You really cant read well can you? Did you understand anything that I posted in the OP? Apparently not.

I told you that I did not want you poisoning this thread. This is a very important subject. It's about the kids. Cut the horse(*)(*)(*)(*). I will not be responding to you further on this thread and I urge others not to either. Stop lying!!

 

I agree with Dixon. The father should also be the legal parent for the woman's child.

 

Now aren't we special! First of all Dixon is wrong and what you think isn't worth a hill of cow flop. Why do you think that he should be the father? So that you can prove that gays are inferior to heterosexuals. Did YOU read what I wrote? Did you understand what I wrote? Are you able to understand what I wrote? This is a serious subject about children. Children who suffer when their gay parents are discriminated against. Can you understand that? I don't think that you're able to understand much of anything.

 

I agree. The father should have legal parental rights, because he is the biological parent. Our society's political correctness standards say that 2 men or 2 women are the equivalent of a mother and a father.

 

Because the child is his offspring, obviously. The child is not the offspring of the woman's partner-it's the offspring of the woman and the donor. What if a woman cheated on her husband and got pregnant-does the biological father not have legal rights and responsibilities?

Another dishonest misrepresentation of my argument. I NEVER said that gays are inferior people. Not even the Christian websites I quote say that gays are inferior. While I dont think gays are inferior, I don't think their relationship should be given the same legal/societal status as heterosexual relationships.

 

Correct.

A child born to a marriage is a child born to their biological parents. A child born from a sperm donor and a married lesbian is the child of the woman and the man, not the woman and her wife/partner.

 

The court case argued that a child born to a marriage is the child of it's parents, but a woman's wife/partner is not the biological parent, the artificial insemination donor is the other parent of the child.

 

Acualy the spouse is the legal parent of any child born to her spouse.

 

Like I said Sam.........

 

What does that mean?

 

Like I said...What grade level do you read at?

 

Irrelevant to this discussion.

 

never a sentence end, a preposition with.

Why are you trying to insist that a biological father is not the father. Would you say the same of the mother?

 

That's only because paternity is presumed.

 

Gosh I hate to agree with Dixon, but he is right about this.

Biological patents have to wave rights to the child.

Think of it like a step child, that's exactly what it is. If a man and a woman have a daughter and they weren't married and the woman gets married to the daughter's step father, the step father has to adopt the child to be considered a custodian of the child.

I don't see how it would work differently if she married a "wife."

 

Often in these cases parents have the ability to sign over their rights.

I just went through this with my kiddo. The parents wouldn't sign adoption papers so Evan and I filed suit for child support. If they sign the papers, they don't have to pay. They signed them as fast as they could.

Having opposing genitalia doesn't make for better parents. Take my example: Chris (my adopted son) was forced to live in a shelter until we took custody. They weren't better.

Sometimes gay parents aren't very good.

So in some cases 2 men are better parents than a heterosexual couple. I didn't have heterosexual couples lining up at my door to adopt Chris. So we must have been the best option for the boy.

 

Sorry! I think that you're wrong. Read the NY case where the judge denied the request to adopt because the non bio woman was already the legal parent by virtue of the fact that she was married to the mother. It may be advisable to adopt. Her parental rights may be challenged. However, at the point of birth, she is the presumed parent. That's what I'm getting from a number of cases here.

 

Excuse me, I may be mistaking when it comes to New York. Texas likely doesn'thave that same rule.

So perhaps this varies from state to state.

 

PS: The example that you used involves a marriage after the birth of the child. I'm talking about two people who happen to both be women being married at the time that one of them gives birth to the child