Legal observers have been predicting that the Supreme Court will rule this June in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment of the U.S. Constitution and to have such marriages recognized by every state, but such a ruling will not necessarily settle all the issues of parental rights of same-sex couples that continue to divide the courts. Litigation in four jurisdictions demonstrates the continuing problem of sorting out such rights.

The Massachusetts Supreme Judicial Court ruled on May 7 in Adoption of a Minor, 2015 Mass. LEXIS 248, 2015 WL 2095242, that the traditional presumption that a child born to a married woman is the legal child of her spouse applies to a lesbian couple, so they need not provide formal notice to their sperm donor that they are seeking a joint adoption in order to avoid problems if they travel or relocate outside Massachusetts. But on May 20, the New York 2nd Department Appellate Division, in Brooklyn, ruled in Paczkowski v. Paczkowski, 2015 N.Y. Slip Op. 04325, 2015 WL 2386457, that the parental presumption does not apply to a lesbian couple, affirming a Nassau County family court ruling that the non-biological mother has no standing to seek a joint custody order for the child born to the same-sex partner whom she married. In Oregon, the Court of Appeals ruled on May 13 in In re Domestic Partnership of Madrone, 2015 Ore. App. LEXIS 577, 2015 WL 2248221, that the question whether the former registered domestic partner of a birth mother should be considered the legal parent of the child turned on whether the women would have married had that option been available when the child was born, and in Wisconsin, Lambda Legal filed suit in Torres v. Rhoades, No. 15-cv-288 (U.S. Dist. Ct., W.D. Wis.), also on May 13, on behalf of a married lesbian couple denied the benefit of the marital presumption by state officials who have thus far refused to list both women as parents on their child’s birth certificate.

For the full story, access the June 2015 issue of Lesbian/Gay Law Notes.