Same-Sex Marriage: Strengthening the Legal Shield or Sharpening the Sword? The Impact of Legalizing Marriage on Child Custody/Visitation and Child Support for Same-Sex Couples

Abstract

The United States is engaged in a national debate over same-sex marriage. While there are undeniably numerous privileges and benefits that marriage bestows - a central argument in the fight for marriage equality - there are certain protections for families that rest outside of legal marriage. Same-sex couples that choose not to marry should be entitled to the same protections as heterosexual couples who choose not to marry. A principal example of these types of family protections is the legal treatment of children born to non-married couples. It has long been established that children should not be treated differently based on the legal status of their parent’s relationship. However, there are substantial differences between same-sex families and heterosexual families that make it a very real possibility that courts will read more into the decision of same-sex couples not to marry than they would for heterosexual couples making the same decision. Most importantly in this context is the difference in determining legal parentage. For heterosexual couples, the parent-child relationship can be easily assessed by a simple DNA test, while for obvious reasons the same is not true for same-sex couples. In the same-sex family context, the parent-child relationship for at least one of the partners will never be automatic. Thus, there is a strong desire for courts to find an easily determinable, bright line proxy for biology. Enter same-sex marriage and presuming (or more importantly not presuming) legal parenthood for children in same-sex families based on marital status. In what can only be explained as pure irony, the fight to increase the legal shield for same-sex families may instead sharpen the legal sword against these families.