With same sex couples and surrogate mothers, the landscape of family law is changing. Now that same sex couples can get married in any state, many are looking at having children. Surrogacy is a modern day alternative to adoption. In New York, a recent case involved a gay male couple and lesbian couple that had a child through surrogacy. The two couples wanted to raise the child together.
According to Business Insider, the two couples devised an elaborate plan that rotated custody every quarter. They even decorated their apartments to look identical. However, after 12 months, despite their best-made plans, the relationship fell apart.
One of the men in the male couple had donated his sperm to a female in the lesbian couple who carried and gave birth to the baby. The judge was saddled with the problem of deciding custody of the child.
The child had two mothers and two fathers. Who would be the primary caretaker? What custody roles would each parent have? Working out custody and visitation was doubly difficult to decide. The biological connection was not the most pressing factor in this case. As more of these unusual cases come before the courts, judges will rule and case precedents will be set. Right now, such cases are in the frontier stages of emerging case law.
If you have questions or concerns about child custody, meet with an experienced lawyer for legal help. Long Island divorce attorney Chris Palermo has years of experience and is sensitive to your needs.
While it seems as though mothers typically still have an advantage in custody cases, you never know for sure how a case will go. This was true when Bode Miller and Sara McKenna both sought primary custody of their unborn child.
Olympic bronze medal winner Bode Miller and Sara McKenna met through a high-end dating service, but their relationship only lasted three months. Afterward, McKenna discovered she was pregnant. Several months later, Miller married his current wife, volleyball player Morgan Beck. (New York Times )
Miller had initially expressed no interest in parenting the unborn child. McKenna, who is a former Marine and firefighter, decided to move from California to New York to attend Columbia University on the G.I. bill. She moved when she was seven months pregnant, and the baby was born in New York. During her pregnancy, Miller sought custody of the child in a New York Family Court. He accused her of leaving California to find a sympathetic court. The NY Family Court judge agreed, reprimanding McKenna and turning the case over for California jurisdiction. A California court awarded primary custody to Miller.
The case brought up legal issues about women’s rights and whether a pregnant woman had the legal right to move. McKenna appealed the decision, and the appellate court ruled that New York had jurisdiction, not California because the child was born in New York. The appellate court also ruled that “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.” The New York court returned temporary custody to McKenna, which allowed her to establish residence in New York.
Child custody battles can be some of the most heart-wrenching issues for parents. Having an effective and compassionate Long Island divorce lawyer at your side, like Christ Palermo, can help you overcome the challenges and protect your rights.
On May 29, 2015, Congress passed the Rape Survivor Custody Act. The new federal law assists women who become pregnant because of rape and decide to keep their babies. The law provides stronger protection against the rapist when he is claiming custody rights to the child.
According to Yahoo News , studies show approximately 25,000 to 32,000 U.S. pregnancies result annually from rape. An estimated one third or more of the women in these instances decide to raise the child.
The Rape Survivor Custody Act boosts funding to states that permit women to petition for parental rights termination of the rapist. Better funding encourages states to help women take a stance. The other change the law introduced is a lesser burden of evidence is required for proving a child was conceived through rape: clear and convincing evidence.
Previously, women did not have much chance of protection unless the rapist was found guilty in a criminal court. Because the burden of proof in criminal cases is guilt beyond a reasonable doubt, many rape cases lacked sufficient evidence for a conviction. Consequently, the rapist, who would either not be charged or convicted, could continue to harass the woman, using a claim for custody as a means of continued torment. Clear and convincing evidence is a lower burden of proof than guilty beyond a reasonable doubt because it only requires proving that it was substantially more likely than not that the rape occurred.
Chicago attorney, Shauna Prewitt began advocating better state laws for raped women after pursuing and enduring a two-year custody case against a man who raped her. She’s quoted as saying that she has seen custody cases where the rapist has told the woman that if she drops the criminal case against him, he’ll drop the custody case or agree not to pursue parental rights.
At this time, 36 states address the child custody rape issue. However, many require a criminal conviction of the rapist. Although New York does not require rape conviction, it also has no provision to terminate parental rights of a rapist. Your attorney must convince the court that the father seeking parental rights is harmful to the child.
If you have concerns about custody, discuss them with Attorney Chris Palermo. He is committed to protecting your rights and providing you with compassionate and effective legal counsel.