What rights do gay spouses have in custody battles?



For centuries, the law has struggled with issues surrounding rights of spouses in custody battles.  Of course, until recently, all of these battles have involved heterosexual couples. When a married woman gives birth, who is the father? What rights does a married man have to custody or visitation of young children? What rights does a husband have when children are conceived in a marriage through artificial insemination. All of these questions have been asked and answered for heterosexual couples. Now the same questions are being raised for same-gender couple who are getting divorced.

One of the first cases in Massachusetts to look at some of these issues for same-gender marriages has answered one of these questions. In the case of Della Carte v.Ramirez, question was raised of the rights of the non-biological parent in regards to a child born to the spouse through artificial insemination. The biological mother argued that her spouse had no rights to her child because she was not the father and had no biological connection and that the artificial insemination law, G.L.c. 46, § 4B provided no rights to the spouse because it used language about a child conceived with the “husband's” consent. In this case, the non-biological spouse was granted joint custody over the minor child. In doing so, the court made a ruling that the spouse was the legal parent of the child.

The result in this case established that for questions regarding paternity, custody, and visitation, there should be no difference between the law for heterosexual couples and the law for same-gender couples. In Massachusetts, marriage creates the same rights regardless of the gender make-up of the couple. Laws that use language that create rights for husbands should be interpreted to mean spouses. For Massachusetts, family court disputes should make no distinction based on the gender of the parties. Custody and paternity decisions should be based on concepts such as the best interests of the children without regard to the gender of the parents.

Paternity, custody and visitation in Massachusetts are complicated issues. An experienced family lawattorney can help parties understand the proper issues to raise in custody proceedings.   

If I was married in Massachusetts can I get divorced in Massachusetts?

Same gender couples who were lawfully married in Massachusetts and have since moved to other states may find that they can't get divorced in the state where they reside. Their state of residence may define marriage as consisting of one man and one woman. As a result, this definition of marriage means that the state of residence may not recognize the same gender marriage. If the marriage is not recognized, then the couple can't get divorced. It is only natural to ask if the couple can return to Massachusetts for one day, appear in court, and get divorced. Unfortunately, this can't happen.

Massachusetts has a residency requirement before a person or couple can file for divorce. The person who files for divorce must reside in Massachusetts for one year prior to the filing. For many couples this means that they have the right to get married as a same gender couple but not the right to get divorced.

If a same gender couple finds themselves in a state that won't grant them a divorce, they have four options:

1. Stay married.
2. One party moves to Massachusetts for one year and then files for divorce.
3. Both parties move to Massachusetts. If both parties are bona fide Massachusetts residents they can file a divorce before the one year has passed.
4. Contact the ACLU or other organization and ask for assistance to file a court action to declare the law of your state in violation of the United States Constitution and unenforceable. The result of this would be to change the law of your state causing the state to recognize lawful same gender marriages from other states. A number of lawsuits of this nature have been filed around the country and have resulted in changing the law of some states.

An experienced Massachusetts divorce attorney can explain the residency requirements of Massachusetts. If you find that you live in a state that doesn't recognize same gender marriages and you can't get divorce you may want to contact the ACLU to find an attorney who can discuss litigation as a method to obtain the right to get divorced.

Court Ruled DOMA unconstitutional

On May 31, 2012, the First CircuitCourt of Appeals unanimously struck down Article 3 of the Defense of Marriage Act (DOMA). DOMA was enacted in 1996 in response to the possibility that Hawaii would legalize same gender marriage. Section 2 of DOMA allows individual states to define marriage as restricted to mixed gender marriages and not recognize same gender marriages from other states. Section 3 defines marriage for Federal law as mixed gender marriage. Obviously, the purpose of DOMA is to deny the benefits of marriage to people of the same gender who want to have a life long relationship. The First Circuit only ruled on Article 3 as the case originated from Massachusetts. Massachusetts allows same sex marriages and recognizes such marriages from other states. As a result, the case did not contain a claim that allowed the Court to rule on Article 2.

Our country has a long history of protecting minorities against the tyranny and oppression from the rest of society. Starting with protection of the former slaves after the civil war, our country has protected minorities based on race, religion, national origin, marital status, handicap, and other categories. Same gender marriage should receive the same protection as other minorities. However, Congress, instead of protecting this minority, choose to single them out to deny them equality under the law.

While our county has a history of protecting minorities, it is the Courts who have protected them when the legislators have persecuted minorities. This is another case where the Courts must act to protect against the tyranny of Congress.

When a claim is made in a court that legislation is unconstitutional, the Court examines the law under long established rules for analyzing the law. The Plaintiffs in this case claimed that the law denied some people equal protection under the law. When an equal protection claim is made, the court must determine if the appropriate standard is the “rational basis” test or the more enhanced “strict scrutiny” test. Strict scrutiny is used if the law could impact a “suspect category”. Suspect categories are classes of people that Congress has declared are subject to discrimination. These categories include race, religion, national origin and other categories. However, sexual preference is not a suspect category. The problem is that sexual preference should be a suspect category.

My criticism of this case is that they court's logic is extremely weak. The Court could have ruled that there was no rational basis for Congress to create this law as the District Court found. Instead, they ruled that Congress had a rational basis to prevent a decrease in tax collections by giving same gender couples the benefit of marriage. They should have ruled that if Congress acts to persecute a minority by increasing their tax burden that this was not a rational basis. Congress should protect minorities, not tax them.

The Court ruled that there is a an intermediate standard somewhere between rational basis and strict scrutiny. They found that this intermediate standard mandates that the law be found unconstitutional. This position weakens the argument. When this case goes to the Supreme Court, it will be very easy for the Court to find that the First Circuit ruled incorrectly.

In my opinion, there is no difference between denying mixed gender couples the benefit of marriage or denying mixed race couples the benefits of marriage. Every argument that was used against mixed race couples has been used against mixed gender couples. Our country is better than this. The Courts should protect the rights of mixed gender couples to marry in the strongest terms.