Same-Sex Spouse Awarded Joint Custody in Massachusetts

Same-sex Spouse is Legal Parent and Gets Joint Custody of Child, Della Corte v. Ramirez, 81 Mass. App. Ct. 905 (2012).

Summary: The Appeals Court held that a former same-sex spouse of a child’s mother was the legal parent of the child, and that no substantial material change in the circumstances of the parties warranted a modification of child custody.  The case involved a woman, Della Corte, who gave birth to an artificially conceived child while married to her same-sex spouse, Ramirez.  During their divorce proceedings, the Probate & Family Court decided that the couple should have joint custody.  Della Corte challenged this finding.  The issue here was whether Ramirez was a legal parent and whether Della Corte would be required to share custody of the child following their divorce.  In interpreting G.L. c. 46, §4b, the Court found that Ramirez was a legal parent, and that there were no substantial and material changes in circumstances warranting a modification of custody.

DiscussionDella Corte was artificially inseminated with the sperm of an anonymous donor approximately two months before the two married.  Ramirez was an integral part of the decision to conceive and the insemination process, and the child’s birth certificate identified both Ramirez and Della Corte as the child’s parents.  After the birth, the relationship deteriorated and Della Corte wanted a divorce.  The Court looked at Massachusetts statute G.L. c. 46, §4b, stating that “[a]ny child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband” (emphasis added).  In interpreting the statute, the Court found there is no requirement that a couple be married at conception, and that the word “husband” should be construed in a gender-neutral manner, not excluding same-sex married couples (citing Goodridge v. Department of Pub. Health, 440 Mass. 309, 343 n. 34).  Additionally, there is no need for second-parent adoption in order to confer legal parentage on the non-biological parent if child is born of the marriage.

Practice Pointer: This ruling confirmed that when a same-sex married couple has a child by artificial insemination, the second-parent does not need to go through adoption proceedings in order to have legal parental rights over the child.  More broadly, this decision seems to have the effect of making same-sex marriages and divorces legally indistinguishable from heterosexual marriages and divorces.

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