Berman & Asbel, LLP

Mothers fight for custody in landmark case

Same-sex couples in Pennsylvania may have heard about a Michigan case between two women who split up in December 2014. According to news reports, the pair had two daughters that were both birthed by one of the women after she obtained donor sperm. Because the couple was never legally married, however, the courts now have to decide who will be awarded custody.

Each woman told the court that she was the primary caregiver for the children, who reportedly recognized both of them as their mothers. They also apparently shared parenting duties equally for as many as eight months following their split from each other. The family court judge who heard their arguments noted how the situation was novel enough to constitute untested legal territory, and organizations like the American Civil Liberties Union say that the final decision could set an important precedent.

The case is further complicated by the fact that the state law that originally prevented the same-sex partners from marrying was subsequently deemed unconstitutional by the U.S. Supreme Court in June 2015. After the biological mother tried to take the children with her when she went to live with a new person, her lawyer said that as the law currently stands, the other woman has no legal custody claim.

Although many laws are changing to better serve same-sex couples and other marginalized groups, progress isn't uniform. As the legal landscape evolves, state legislators and policy writers may be slow to catch up, which can make things confusing for families and parents who go through relationship changes. Child custody disputes that should be relatively straightforward may get drawn out as courts try to interpret the rules, so many parents find it advisable to meet with a family law attorney to determine what their rights actually are and how to assert them appropriately.

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