When it comes to child custody decisions for same-sex couples in the Commonwealth of Massachusetts, there can be confusion over laws that have been on the books for decades, but contain gender-specific language such as “husband” and “wife”.
Defining roles in a new era.
In the early years of the 21st century, the courts began to try to address the complexities of non-traditional families. For example, judges had to address custody of children conceived via artificial insemination to both heterosexual and same sex couples. However, the language of the laws on the books did not always keep pace with these changes in the makeup of the family. In many instances, those laws used terms such as “husband” and “married woman” that were not applicable to these new types of families. But, the Massachusetts Appeals Court issued a ruling that clarified that those gender-specific terms do not exclude same-sex couples from that law.
The courts in Massachusetts now use terms such as “de facto,” “custodial” and “non-biological” parents in same-sex custody cases to designate parental roles and establish custody.
A consequence of recognizing new concepts of family, is that the parties and the Courts have also had to address the dissolution of those new forms of family. As is true of heterosexual couples, it is not uncommon for a same-sex couple who are parents of a child to later part ways, resulting in a divorce or custody case that is as long and traumatizing as those of “traditional” families. In the end, the controlling question for the judge to decide remains the best interests of the child.
In any case, if you should find yourself adopting or bearing a child while living with your partner, it’s wise to draw up a parenting agreement or, at the very least, to lay down some clear guidelines as to who will do what to take care of the children. It is preferable to do this before conflict arises, while both parents are cooperative and in agreement. If you need help to do so, mediation or collaborative process may be effective in reaching such an arrangement.