Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
What is a mother? A father? A parent? Though these concepts have long avoided detailed examination by the courts, times are changing and specific definitions will need to be created or, in some cases, changed. As states continue to feel the impact of the Obergefell same-sex marriage case, they have found themselves increasingly drawn into disputes regarding what makes someone a parent, something that requires the courts to lay out a more precise and potentially different definition than in years past.
The cases regarding same-sex parentage, though unrelated to same-sex marriage, flow from the same legal concept. When the U.S. Supreme Court decided Obergefell back in 2015, they made clear that marriage should be something that takes places between two spouses, not necessarily a man and a woman. The narrowly tailored forms that required listing a husband and wife would no longer be enough to deny same-sex couples the rights granted to opposite-sex couples. This redefinition of marriage and an important line in the ruling that said same-sex couples should also be allowed access to the constellation of other rights and privileges available to opposite-sex couples has led to a number of legal challenges from same-sex parents.
In a case currently pending in Mississippi, one woman, Christina Strickland, is suing to be listed as a second parent to her daughter. Given that the girl was born during the course of Christina Strickland’s marriage to Kimberly Day, this might not seem especially controversial. That said, Mississippi law is written in such a way that Christina’s claim for parentage has so far been blocked by the courts, requiring Christina to appeal all the way to the state Supreme Court.
The case began when the two women decided to have a child together. Kimberly chose to carry the child and used a sperm donor to fertilize one of her eggs. The child was eventually born and took Christina’s last name. Christina never moved to formally adopt the child, deciding that being the presumed parent was enough and that no other steps were necessary.
Though this may have worked had the couple remained together, when they chose to divorce Christina discovered the importance of having established a legal tie with the child. The court presiding over the divorce granted Kimberly, the biological mother, full parental rights and custody. Christina was granted only visitation. The problem for Christina is that she was not deemed a second legal parent, according to the court, that role is played by the sperm donor.
The lower court’s decision stated clearly that two women could not create a child. The court said instead that one woman, along with a sperm donor, created the girl at issue in this case. If Christina wanted to play a larger role in the child’s life, then she and Kimberly should have gone about terminating the legal rights of the sperm donor and then applied to legally adopt the child. Christina and her attorney argued that this discriminates not only against same-sex couples in a way contrary to the recent ruling in Obergefell, but also against all couples with fertility issues who may require the use of donor sperm or eggs. The idea that the donor should be treated as a legitimate parent, Christina argues, is ridiculous.
The case has made its way to the Mississippi Supreme Court. Justices will now hear arguments about whether in Mississippi two women can indeed be presumed to be parents of a child. If Christina has her way, establishing parentage will become much simpler for same-sex couples in the state. If she loses, same-sex parents, as well as opposite-sex couples with fertility issues, will have to be careful to jump through a set of extra hurdles to establish legal parental rights.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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