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.   

Why the Degeneres brief deserves our attention.

Ellen Degeneres, the TV personality, claims that she filed a brief in the Supreme Court in the potentially landmark case involving California's Proposition 8 and gay rights.. This action deserves the attention of the nation. That Ellen supports gay rights should not be a surprise. However, to my knowledge, this is the first time that a “brief” has been filed in the manner chosen by Ellen. She filed the brief on Facebook. Nobody has done this before.

Of course, the brief filed by Ellen is not a brief at all. It is a letter to the Supreme Court published on the internet. The Supreme Court has rules on how to file briefs. Ellen failed to comply with any of these rules. According to the rules of the Supreme Court, the parties to the litigation can file briefs. Other parties, can file briefs on a case but only with permission of the Supreme Court. Ellen had no such permission. She is merely an ordinary citizen who published her position on the issue on the internet. However, while she is only a citizen, she is also a famous personality.

Traditional theory teaches that Judges don't consider outside influences when deciding cases. It is clear that the Supreme Court conducts their own social and factual research. This was demonstrated recently when Justice Roberts mentioned facts about voting rights that were not known by the litigants. http://news.yahoo.com/massachusetts-more-racist-mississippi-chief-justice-roberts-hints-193401190.html. The reason that this action by Ellen is worth watching is to see if the Supreme Court pays attention to her letter.

As society changes, I hope that government changes with society. Clearly, the technological changes in the internet and social media can change the way the courts function. Should the Supreme Court or any other Court allow individuals the right to right “briefs” on pending cases by publishing them on the internet? This case and Ellen's “brief” may change the way the courts function.

On the subject of gay rights, Ellen's brief isn't really a brief at all. It is a short letter that states that her gay marriage doesn't hurt anybody. She is denied rights for no reason except she is different. She urges the Judges to rule that gay marriage should be treated the same as any other marriage. Based on substance, this is a very poor brief. However, the unique publication method could make this brief one of the most important briefs filed in the Supreme Court.

Does Gay Marriage hurt society?

During the last two weeks, the issue of gay marriage has received a lot a attention in the press. This is a result of the Ninth Circuit ruling that California's Proposition 8 was unconstitutional and the Governor of New Jersey vetoing a bill to legalize gay marriage in New Jersey.

I practice law in Massachusetts and this state was the first in the nation to legalize gay marriage in 2004. While I don't have the benefit of statistics, I believe that I can evaluate the impact of this decision.

The press no longer carries stories about gay marriage in the state. People appear to have accepted gay marriage and no longer discuss the subject. There were never any stories of any harm to anyone in the state. There were no reports of heterosexual marriages destroyed as a result. Basically, all of the fears of harm from gay marriage failed to occur. There appears to have been no negative impact.

Nevertheless, there are some people who were affected by this change in the law.  The numerous gay men and women who were able to legally wed and have the same rights and benefits as others  were affected.  They now can inherit from their spouses. They can obtain employment benefits for their spouses. They are treated the same under state tax laws as other married couples. They have the opportunity to be happier as a result of the equality they can experience in this state.

While the rest of the country struggles with the issue, they should look at the impact of gay marriage in Massachusetts. It appears to me that gay marriage has benefited society and had no negative impact at all.