Same-Sex Fathers: Unique Legal Issues and Considerations

Navigating the legal issues that arise related to child custody is complicated and can pose many challenges to all parties involved. Because much of the case law and statutory language in North Carolina is heteronormative and emphasizes the “biological” parent of a child, same-sex fathers can be left with questions about how the state’s established legal standards will apply to their case.

The general rule in North Carolina is that any “parent, relative, or other person … claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child.”[i] The term “custody” refers to both actual custody of a minor child and the right to visitation.[ii] The court has the ability to make determinations for both the legal and physical custody of a minor child – meaning that the court can rule on where the child will live as well as who has decision-making powers relating to the child’s life.

One issue that can arise in same-sex father custody determinations is whether a father who is not biologically related to a child and/or has not legally adopted a child is entitled to custody. For instance, married fathers could have engaged in a surrogacy arrangement only involving one of the fathers biologically and a third-party surrogate, meaning the other father is not biologically related to the child. After the child was born, the non-biological father may not have legally adopted the child because, by nature of his relationship with the child and the other father, the non-biological father is the child’s other father. If this is the case, it may appear upon an overview of custody laws that the non-biological father could struggle to be awarded custody upon separation or divorce from the child’s biological father.

Parental rights are protected by the Constitution; therefore, state laws regarding custody by “non-parents” lean toward protecting the parents’ rights over that of a “non-parent.” This standard was made with the non-inclusive definition of “parent” to mean the biological mother or father of the child. Of course, same-sex fathers are each just as much of a parent to a child as one another, regardless of their status as the “biological” parent of the child. However, because of the non-inclusive language in much of statutory and case law precedent, the status of a father who is not biologically related to a child and who did not legally adopt the child can be confusing.

The North Carolina Court of Appeals addressed this issue in Heatzig v. MacLean. This case involved a same-sex couple who decided to have a child through artificial insemination of one of the mothers that resulted in the birth of twins. After several years of raising the twins together, the couple separated. The biological mother of the twins did not wish for her former partner to have custody or visitation of the twins after their separation, leading the non-biological mother of the twins to file for custody. The Court of Appeals held that the trial court cannot confer parental status onto a non-biological parent. In order to confer such status, the Court must find that the biological parent “acted inconsistently” with their constitutionally protected rights as a parent.

Along with this determination, the Court must make findings of fact showing “whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a permanent parent-like relationship with his or her child.”[iii]

If both above-mentioned tests are met, same-sex fathers who have dissolved their relationship with one another are each entitled to custody of the child they share together.

If you or a family member are navigating custody as it applies to a same-sex relationship, our staff is here to answer your questions! Schedule a consultation with one of our family law attorneys skilled in this and many other facets of custody.