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Divorced same-sex couple granted equal parental rights

Child custody disputes are difficult for any parents involved in a divorce or separation. Coming to terms with not seeing a child on a daily basis is heartbreaking for each parent involved. A recent story about a same-sex couple's child custody dispute may be of interest for Brooklyn residents. As more same-sex couples opt for marriage, ultimately some of those relationships will end in divorce. The problem lies in the existing language used to define a married couple by the state, when that marriage is being dissolved and child custody is being disputed.

The divorce of a same-sex female couple prompted a child custody dispute between them. The woman who gave birth to the child wanted to exclude her ex-spouse from the child's life, based on a state law that uses the terms "married woman" and "husband" to define the people in a marriage.

A state appeals court solidified an earlier ruling by a family court judge granting the non-biological parent full parental rights. The court felt the state's custody laws applied equally to same-gender couples as they did to opposite-sex married partners.

Artificial insemination was used to conceive the child two months before the women married. The argument by the child's birth mother centered upon her former partner's inability to be a "father."

The court acknowledged the law's wording, but cited a 2003 Supreme Judicial Court ruling granting constitutional rights to same-sex marriage partners. Whether or not a spouse could fit the traditional description of a "husband" made no difference, according to the appeals court.

The court felt the non-biological parent played an equal role in the agreement to conceive the couple's child. Another factor in favor of shared parental rights was that the birth of the child happened during, and not before, the women's marriage.

A critical part of the court's ruling was dependent upon the recommendations of a court-appointed guardian. The guardian spent time with the child in dispute and concluded that each of the former spouses was a "loving parent" who had an important relationship with the child.

Source:, "Same-sex parents share role, court says," John R. Ellement, Feb. 3, 2012

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