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How Paternity Can Affect Parents in a Same-Sex Marriage

When laws suddenly change, it takes a while for society to catch up. Sometimes, people are ignorant of how to operate under the new dynamic, or they are just too stubborn to adapt. Often, unanticipated complications arise with the arrival of the new law. People don’t know how to handle new situations, and their problems aren’t resolved until the matter goes to court.

In 2015, the supreme court formally recognized the marriage rights of same-sex couples. As these marriages become more common, there is still some confusion surrounding parenting. It can be difficult to understand exactly what your rights are or even if you can become a full parent.

“Paternity” is the term for legally recognized fatherhood. It is particularly relevant and impactful for same-sex couples. In this article, we will explore various scenarios, illustrating how the issue of paternity affects same-sex parents.

Woman/Woman Couples

When a child is born, there is no question as to who is its mother (unless, of course, it was a surrogate pregnancy). People don’t often discuss “legal maternity,” because it simply isn’t much of an issue. Paternity, on the other hand, can be much more complicated.

A pregnant woman can easily marry someone who is not the child’s father. When she delivers, her husband is automatically given legal paternity of the child. For paternity to be transferred to the biological father, paperwork must be filed. More complicated situations can involve courtrooms and DNA tests.

A pregnant woman’s wife does not enjoy automatic maternity. Regardless of the presence, involvement, or even living existence of the father, this wife cannot immediately gain legal parenthood. She must go through the adoption process to gain motherhood.

This situation can be further complicated if the biological father appears, claiming paternity. If granted, the wife cannot claim legal motherhood at all. At best, she can operate as a legal stepparent.

There are ways to block paternity claims, if necessary. A court can rule that it is not in the child’s best interests to allow the biological father his paternity rights. If you are in a situation where an unfit father is attempting to gain paternity, consult a lawyer. They can help you fight back and potentially block this claim.

Man/Man Couples

Paternity affects all men equally, regardless of sexual orientation. If a man impregnates a woman to whom he is not married, paternity can become a legal quagmire. When she is married to another man, the father may have to fight for his legal, parental rights. Even when she isn’t married and welcomes the father’s involvement, there is still extra paperwork to manage.

When a man is married to another man, paternity issues may affect the husband more than the father. The father may go through the paternity process, but this leaves his husband without legal, parental rights. The mother must revoke her maternity for the husband to adopt. Otherwise, he remains in a permanent stepparent role.

If the mother is an unfit parent, there are ways to have her motherhood legally revoked. This is not easy to do, and the court is likely to give her several chances before going to that extreme. She must be a poor parent to the point of being an imminent danger to the child for this claim to work. If you are stuck in such a situation, consult a lawyer. They can help you prove that by getting the child away from the mom, you are essentially saving its life.


Despite the obvious biological differences, on a legal level, same-sex parenting is not all that different from heterosexual parenting. If a child already has two legal parents, the other adult may function as a stepparent. The law always favors legal parents first, but there are circumstances where parenthood can be revoked.

On the other hand, adoption makes someone a fully recognized parent. In the eyes of the law, there is no difference between an adoptive or biological parent. Your rights are inalienable, and only an extreme circumstance can have them revoked.

If you have questions or concerns about your rights as a parent, consult a lawyer. They can help you navigate and clarify your rights. When necessary, they can help you gain your rights in court or rescue a child from an unfit parent.

If you need help with your legal, parental rights, contact our firm today for help. You can reach us at (803) 938-4952, or you can fill out our online contact form.