Marriage equality for same-sex marriage partners in Georgia is set to impact dramatically on child custody rights in the state.
According to the National Center for Lesbian Rights (NCLR) statistics, Georgia is currently one of only 14 US states to allow second-parent adoptions by unmarried same-sex couples in some counties. However it is the Supreme Court decision in a 2015 same-sex custody case that is going to make a difference.
Commonly referred to as the “Obergefell decision,” the precedent-setting judgment in the Obergefell versus Hodges case last June impacts directly on the interpretation of Georgia law that until that time refused to recognize that some families have two parents of the same sex.
Atlanta attorney Georgia Lord believes the decision will “transform” the way the courts in Georgia rule on child custody rights in cases of same-sex marriage. However there is still considerable uncertainly in terms of the rights of same-sex parents fighting for custody of their children.
In terms of the Obergefell-Hodges ruling, the state of Georgia must issue same-sex marriage licenses in exactly the same manner it issues marriage licenses to men and women. The state also has to recognize a same-sex marriage that has been lawfully licensed, even if it was performed out-of-state. And if there was ever any doubt of the validity of this ruling, Georgia’s attorney general and its Council of Municipal Court Judges has announced officials in the state will comply.
Child Custody Litigation Prior to June 2015
Previously, child custody litigation between lesbian, gay, bisexual, trans and queer (LGBTQ) or LGBT people usually hinged on whether the person seeking custody would be recognized as a parent in terms of the law. The fact that that person had functioned as a parent wasn’t relevant, and the best interests of the child (or children) was not part of the equation. If that person wasn’t recognized as being a legal parent, custody claims were generally dismissed.
There are many Georgia statutes that relate to a person’s right to child custody, but as Lord points out, these are generally based on outdated assumptions and established stereotypes. For instance:
- Children can only have one biological mother.
- Children cannot have two legal mothers or two legal fathers at the same time.
- Marriage involves two people of different sexes – a woman and a man.
Uncertain Impact of the Obergefell versus Hodges Child Custody Case
While the case sets a precedent, there are many issues that are uncertain in terms of future child custody cases, particularly when one of the partners in an LGBT couple wants to fight a biological parent to retain custody.
Lord lists some possible problem scenarios in same-sex marriage custody battles that could complicate future Supreme Court judgments:
- One partner is the biological parent and the other is an “adoptive parent” either via a step-parent or second parent adoption process.
- One partner is the biological parent and the other has been recognized informally as a co-parent from the time the child was born. There is a possibility that they had a non-licensed marriage ceremony, but didn’t marry in a state where their relationship would have been legally recognized.
- Two people had a non-licensed wedding ceremony in Georgia where they lived when they “had” a child. They had a parenting agreement but separated prior to the Obergefell decision.
- One partner supplied the egg for the child and the other partner was artificially inseminated, carried the child and gave birth to the child.
- Eggs were supplied by a donor, and then the two male partners each provided sperm to fertilize two eggs – for twins.
- Same-sex partners married and were licensed in a state that recognized same-sex marriage, then “had” a child while living in Georgia but didn’t follow the adoption process.
- Two people were married while they were different sexes but now have a same-sex relationship because one of them became trans-gender.
Because of these and other open-ended questions without answers, it is generally thought that, at least for now, anyone wanting to adopt a child and become a non-biological parent in Georgia should use the step-parent adoption option. But even this isn’t foolproof, particularly when other state judges are involved – as was revealed in the Alabama Supreme Court late last year.
A lesbian couple living in Georgia had three children, all with a sperm donor. To ensure they were both legal parents, the partner of the biological mother adopted the children. Sadly the couple split and the biological mother moved to Alabama with the deliberate intent to prevent their adoptive mother from having access.
The Supreme Court judges in Alabama refused to recognize the Georgia adoption and essentially stripped the adoptive mother of her rights. Alabama is not one of the states that allow second parent adoptions by unmarried same-sex couples!