In a same-sex marriage, if a woman gives birth to a child, then the couple divorces, should the biological mother’s ex-wife have a claim to custody rights?
In some states, yes. But in Louisiana, the answer would be no.
A woman from Denham Springs who is involved in a custody battle with her ex-wife has filed a lawsuit challenging the state law, contesting that it violates the equal protection clause of the 14th Amendment.
“We’re left with a situation where a non-biological parent in a same-sex marriage really has no rights,” said attorney Charles Blaize, Jr., who is representing the plaintiff. “They’re not really a parent and it creates all types of issues relative to the rights, under the U.S. Constitution’s equal protection provision.”
Legal observers say this case could potentially set a precedent that would apply across the state. And advocates for LGBTQ equality state that it’s part of nationwide efforts to fully apply Obergefell vs Hodges, the 2015 Supreme Court ruling that legalizes same-sex marriage across the United States.
Mary Bonauto stated, “What the Supreme Court has said is you don’t get to make distinctions anymore.” Bonauto is a senior director of civil rights and legal strategies for LGBTQ Legal Advocates and Defenders, who argued before the Supreme Court in the Obergefell decision. “If you’re married, then the presumption of parentage – which has existed for 200-plus years – applies in this context in the same way that it would apply to a different-sex couple.”
However, this law is challenging the decisions of the state legislature that will not change the law and has repeatedly refused to recognize the custodial rights of people in same-sex marriages who are not biological parents.
Case Facts
In April of 2017, Mary and Peyton Myers were married in Lafayette, Louisiana. Three years later, Payton gave birth to a daughter. According to attorney Charles Blaize, Jr., the biological father has made no claims for custody.
According to divorce filings, Mary Myers did sign the birth certificate, but did not formally adopt, nor did she take steps to be properly filiated, the process of establishing her status as a legal parent.
On March 28th, when Peyton Myers filed for divorce, she requested that the judge grant her sole custody of her now 3-year-old daughter. She also wanted Mary Myers’ name to be removed from the child’s birth certificate.
Peyton argues that as the biological mother, she is her daughter’s lone guardian and her ex-wife has no custodial rights according to the law.
Peyton’s attorneys argue, by law, Mary Myers has to prove that Peyton Myers poses a threat of “substantial harm” to her daughter in order to block the court from granting sole custody to Peyton.
In their argument, Peyton’s attorneys emphasize that, “Louisiana does not presume there to be a right to establish a legal relationship between a child and multiple ‘mothers’.”
However, Mary Myers claims that since the child’s birth happened during their marriage, that should create the legal presumption that she is also a parent. She is requesting a judge award her joint custody.
Presiding judge, Erika Green, will hear arguments from both sides during a September 5th hearing.
Hannah Honeycutt Calandro, the attorney representing the Myerses’ daughter said, “It’s an issue that with ever-evolving laws in the state, it’s something that’s eventually going to have to be addressed. It just is.”
The Issues
The majority of jurisdictions allow a man the “marital presumption of paternity” of any children his wife gives birth to while they are married. Courts and legislatures in many other states allow that marital presumption to the non-biological wife in the same-sex marriage of two women.
Louisiana is not among the states that allow such a ruling. The state was of only 13 states that prohibited same-sex marriage until the Obergefell decision; the state legislature had declined to change lawbooks to make its statutes gender-neutral and currently does not recognize the custodial rights of a spouse that has no biological connection to children in same-sex relationships.
Presumption of paternity is also not recognized for men in same-sex relationships.
Attorney Charles Blaize acknowledged the defendant’s goal to overturn the established state law and believes that this case poses a legal question that will need to be decided upon in Washington, D.C.
“ I think this factual circumstance means it’s probably going to end up in the U.S. Supreme Court,” Blaize stated. “Because the ultimate argument is whether or not Louisiana statutes are constitutional or unconstitutional as applied to the Obergefell decision.”
Attorneys representing Mary Myers could not be reached for comment.
The Obergefell decision did not specifically outline rules for issues such as inheritances, division of property, child support, custody rights, or other issues that accompany marriage. But they said that to secure equal rights for LGBTQ Americans, the law must provide the full “constellation of benefits … linked to marriage.”
In a 2017 case involving a same-sex couple in Arkansas, the high court went a step further by ordering states to recognize both same-sex spouses’ right to sign their names on a birth certificate.
Advocates for the LGBTQ community argue that rights to custody clearly fall within the “constellation” of marriage benefits, so the Obergefell decision applies.
Nesta Johnson, a family law attorney for the National Center for Lesbian Rights states, “This is not a new issue, and it seems pretty clear that all of the existing case law … would apply to this situation.”
However, in the ongoing 19th JDC custody dispute, Peyton Myers and her attorneys are relying on 2021 ruling by the Louisiana Supreme Court that does not recognize a non-biological spouse as a parent; Mary Myers argues that the 2021 decision does not apply because the couple was not married.
As of now, Louisiana courts have mostly limited Obergefell to the issue of marriage licenses. With state lawmakers not wanting to weigh in, the current legal interpretation is that the Obergefell case does not apply to custody disputes, inheritances, child support, visitation rules, and other rights of marriage.
Blaize sent a notice of the constitutional challenge to Attorney General Jeff Landry, which is an obligatory step when a state law is contested in a case.
Blaize will expect Landry to step in at some point to defend the legality of the state’s custody statutes. On Wednesday, a spokesman for Landry confirmed that the Attorney General’s office is closely watching the case.
New efforts to change the law
This new lawsuit follows years of advocates trying to convince the state legislature to change the law.
Andrea Carroll, an LSU family law professor and council member of the Louisiana State Law Institute’s child custody committee, stated that the group had drafted proposals on three separate occasions to alter Louisiana’s family laws to make them more gender inclusive. But she says those attempts have been met with stiff resistance.
Carroll said, “I believe that these laws are unconstitutional. We have tried to get the Legislature to change them three times and they have refused to do so. I believe it’s because they hope Obergefell will be changed with a more conservative Supreme Court.”
National LGBTQ advocacy groups have lobbied states to adopt the Uniform Parentage Act, which is a gender-inclusive doctrine that would serve as a blueprint for married, as well as unmarried couples across the board to establish paternity of minor children. Currently, 24 states have adopted a version of the doctrine, according to the Uniform Law Commission.
In the meantime, LGBTQ legal advocates warn that merely signing a child’s birth certificate is often not enough for gay and lesbian families. They stress the need for same-sex couples to legally obtain a co-parent adoption to formally establish their rights to custody.
The prominent Massachusetts family attorney, Joyce Kauffman, explained that adoption decrees are legally binding court orders that act as an “insurance policy” if a non-biological parent’s rights are challenged.
Kauffman went on to say, “People shouldn’t have to do it because heterosexual people don’t have to do it. Even if the husband is not the biological parent of the child, nobody ever questions that. We certainly should not have to adopt our own children in order to prove our parentage. But because cases like this one (in Louisiana), best practice is to do an adoption so that your parentage is protected no matter where you are.”
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