How Does Presumption of Parentage Work in Same-Sex Marriage?

A legal presumption can allow a court to reach a certain conclusion once a specific set of facts have been established. When it comes to parentage, Minnesota recognizes a legal presumption of paternity when the parents of a child are married. Significantly, Minnesota law also applies the same presumption of parentage in cases involving married same-sex couples.

Does Minnesota’s Paternity Statute Apply to Same-Sex Marriages?

Under Minnesota’s paternity statute, a child born during a marriage is legally presumed to be the child of the biological mother’s husband. While this statute uses gender-specific language which does not necessarily apply in cases involving same-sex couples, the state later enacted a separate law to address the rules of construction.

Pursuant to Minn. Stat. § 517.201, subd. 2:

“When necessary to implement the rights and responsibilities of spouses or parents in a civil marriage between persons of the same sex under the laws of this state, including those that establish parentage presumptions based on a civil marriage, gender-specific terminology, such as "husband," "wife," "mother," "father," "widow," "widower," or similar terms, must be construed in a neutral manner to refer to a person of either gender.”

In other words, the rules of legal construction apply the paternity statute to the non-biological parent of a same-sex couple.

Is There a Presumption of Parentage When Same-Sex Parents Are Not Married?

There is no presumption of parentage in Minnesota for unmarried same-sex parents — or those who marry after the child has been born. This means that the non-biological parent would have no parental rights in connection with the child, regardless of whether they have helped to raise them since birth. When a same-sex couple is not married, the only way to establish a legal parent-child relationship with their partner’s biological child is through second-parent adoption.

Second-parent adoption can give a same-sex parent peace of mind that their parental rights will be preserved in the event they need to legally exercise them. For instance, by adopting their child, they would be able to make decisions in the event of a health emergency and pick their child up from school without having to worry about authorization. Importantly, second-parent adoption can provide a child with stability — and ensure that a parent would have a legally secure relationship with their child. It also establishes rights and duties of the non-biological parent.

Rights of Same-Sex Parents in Divorce

Child custody is a crucial part of any divorce settlement — it’s essential for a child to be able to foster a meaningful relationship with both their parents. Determining child custody is no different in a same-sex divorce than it is in a heterosexual divorce. While parents are free to reach an agreement outside of court to determine custody matters and parenting time, a court may determine the issue in the event parents cannot reach an agreement. In such cases, a judge would evaluate what is in the best interests of the child.

Under Minnesota law, the court would consider the following factors in determining the best interests of the child for the purposes of deciding custody and parenting time issues:

• The child’s needs and the effect of the proposed custody arrangements on their development;
• Any special health or educational needs of the child;
• The child’s preferences, if they are mature enough to express an independent and reliable preference;
• Any health issues of a parent that could affect the child’s safety or development needs
• Whether there were instances of domestic abuse;
• Each parent’s history of caring for the child;
• The effect on the child’s well being regarding a change in home, school, and community;
• The effect of the proposed arrangement on the child’s relationships with each parent, their siblings, and other significant people in their life;
• The benefit to the child of maximizing parenting time with both parents;
• Each parent’s willingness to encourage frequent and continuing contact between the child and the other parent;
• The ability of the parents to cooperate in raising the child.

If both parties are the child’s legal parents, either biologically, through the marital presumption of parentage, or by adoption, custody matters are treated the same as they would be in a heterosexual divorce. However, there are certain instances in which child custody in a same-sex divorce can be complex. If the child was born to the biological parent before the parties were married, and a second parent adoption was never completed, obtaining custody rights in the event of divorce can be challenging for the non-biological parent. In such cases, it is essential to consult with a knowledgeable family law attorney who can advise you of your legal rights and options.

Contact an Experienced Minnesota Divorce Attorney

Child custody matters can sometimes be complex in a same-sex divorce. If you and your spouse have decided to part ways, a knowledgeable divorce attorney can help ensure your parental rights are protected and the best interests of your children are met. Divorce and family law attorney Louise Livesay has been dedicated to helping clients in the Twin Cities area resolve a variety of divorce matters peacefully and respectfully for over two decades. We welcome you to contact us online for a consultation or by calling 651-294-2338.