Sherry Miller July 20, 2020

As more and more families in the LGBTQ+ community are getting married and having children, there is unfortunately a growing number of same sex custody cases as well. North Carolina Courts are becoming progessive in treating same sex couples the same as hetero-couples, however, our current custody laws make the Court's job difficult. Does the fact that both parties are married to each other make them both legal parents? Marriage itself does not create a legal status when it comes to custody just like a step-parent does not become legally responsible for a step child upon divorce. Since this territory is full of first impressions, our Courts tend to look at this issue on a case by case basis. Here are 3 scenarios that I think will help guide you.

Scenario One: Same sex couple using a donated egg and donated sperm. One parent gives birth to the child. The parent whose name is on the birth certificate is going to be considered the legal parent. To get custody, the non-legal parent will have to file as a third party and establish that the legal parent acted inconsistent with her constitutionally protected status as a parent. I think if the non-legal parent shows a substantial relationship with the child, and that it is the intent of the legal parent to permanently create a parent-child relationship between non-legal parent and child, then she overcomes the constitutionally protected status obstacle.

Scenario Two: Same sex couple using a surrogate and one of the parents provide the sperm. The parent who provided the sperm will be listed as the father on the birth certificate. If the surrogate is listed as the mother and continues to have a relationship with the child, I think the non-legal father is going to be in a very precarious position when it comes to custody. He will have a harder time showing that that both parents acted inconsistent with their constitutionally protected status since the surrogate is still involved with the child. If the surrogate is not involved, then the non-legal father will only need to over come the legal father's constitutionally protected status.

Scenario Three: Same sex couple using donated sperm, egg is donated by one spouse but is implanted on the other spouse who gives birth to the child. The mother birthing the child will more than likely be on the birth certificate as the mother, but how does the court deal with the fact the birth mother has no biological (DNA) connection to the child. I have not come across any case law regarding this scenario, but I believe the birth mother will have to file as a third party in a custody case and then show the mom who donated the egg acted inconsistent with her constitutionally protected status, very smiliar to Scenario One.

Even if custody is worked out among the same sex parents, how should child support be treated since the law is clear that third parties (except under some very limited circumstance) are not required to pay child support? I think until the laws have caught up to the times, that the safe bet is for the nonlegal parent to file for adoptions in each of these scenarios.