Establishing Legal Rights to Children of Non-Biological, Same-Sex Parents

In honor of National Adoption Day, which is always the Saturday before the Thanksgiving holiday, we’re pleased to share with you an equally important case involving a same-sex, non-marital relationship, where the Massachusetts Supreme Judicial Court has ruled that a non-biological, same-sex parent can be presumed to be a child’s parent under Mass. Gen. Laws c. 209C, § 6, provided that 1) the parent can show that the child was born to that parent, and 2) that the child was received into the parent’s home and openly held out as that parent’s child. See Partanen v. Gallagher, SJC-12018, slip op. (October 4, 2016).[1]

In this case involving two female partners, one of them underwent in vitro fertilization and was successful in becoming pregnant. The female partner who did not undergo in vitro nonetheless was fully aware of her partner’s efforts, participated in the effort and gave her full consent. Following the birth of the child, the non-biological partner did not adopt the child, but nevertheless participated in raising it from birth. The child referred to both women as “Mommy,” and both women represented themselves publicly as the child’s parents.

About a year after the child was born, the partners separated and the non-biological partner filed an action seeking shared custody and visitation. A trial court judge ruled that the non-biological partner was a “de facto” parent[2], but the non-biological parent wanted full legal parentage.

The Court acknowledged an earlier case from New Hampshire emphasizing the strong bonds that can form between a non-biological parent and a child by quoting:

The familial relationship between a non-biological [parent] and [a] child…, resulting from years of living together in a purported parent/child relationship, is considerably more palpable than the biological relationship of actual paternity and should not be lightly dissolved. In re Guardianship of Madelyn B., 166 N.H. 453, 461 (2014).

For same-sex couples, this case represents a significant step forward in maintaining legal relationships with non-biological children. This area of law is complex and evolving. If you have questions about this, or any other legal issue, consult the attorneys of Hutchins Law, P.C. today.

[1] Previously the Court had ruled in Paternity of Cheryl, 434 Mass. 23 (2001), that a non-biological father (in a heterosexual relationship) could be presumed to be the child’s parent through the execution of an acknowledgment of parentage (like a birth certificate).

[2] See A.H. v. M.P., 447 Mass. 828, 843 (2006) (“a de facto parent” is not “afforded all of the privileges of a legal parent”).

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.