When longtime partners, Jason Serrano and Jonathan Foret finally tied the knot three years ago, it was part of their plan to start a family.
According to Serrano, one of the reasons they decided to get married was to protect their parental rights for their son, who was born seven weeks after they wed, via surrogate.
In March of 2021, the boy was born through vitro fertilization – using a donor’s egg, Foret’s sperm, and a surrogate’s womb. Upon his birth, Serrano chose to take family medical leave from his employment at the Terrebonne Parish Animal Shelter to take care of the newborn. A month later, he quit his government position to become a full-time, stay-at-home dad.
Things took a turn in December 2022 when the same-sex couple divorced. According to court records, custody was withheld and visitation was refused to Serrano by Foret, the child’s biological father. Last year, when Serrano asked the Terrebonne Parish Judge for joint custody, he was denied his bid to establish paternity and would not be recognized as the child’s legal parent.
Louisiana law states that a man is presumed to be the father if his wife gives birth to a child during their marriage. Louisiana is one of many states that have not granted the presumption of parentage to non-biological spouses in same-sex marriages.
Recently, the First Circuit Court of Appeals bolstered last year’s ruling to bar Serrano’s parental rights. Stating that neither Serrano nor Foret gave birth to the child themselves, appellate judges determined that legal parentage is established contractually when a surrogate is involved.
Under Louisiana law, since Serrano had not been a listed party on the gestational carrier agreement, did not adopt the child, or add his name to the child’s birth certificate, the appeals court ruled that he could not be deemed the child’s legal parent.
Although Serrano still refers to the child as his son, he missed the boy’s 2nd and 3rd birthdays and says he has not seen the child since January of 2023. He is concerned that because of his sexuality, his custodial rights may be in jeopardy for good.
Serrano states, “I can’t even explain the feeling inside my chest that’s sometimes really heavy. Thinking that I’m less than. Feeling like I have to go through more because I was born in a way that I can’t help. I wanted to raise a family; I want the same things as everybody else. But I cannot have that, and I’m told by my state and by regulations you can’t have that time with your son because you’re different.”
On April 30th, the First Circuit Court recognized “deficiencies” in the state’s laws regarding same-sex couples and said it would be in the hands of lawmakers to expand the presumption of parentage in Louisiana statutes to make it applicable to same-sex couples.
The appellate judges wrote, “Courts are not free to rewrite laws to effect a purpose that is not otherwise expressed. It is for the legislative branch to remedy the deficiencies in the statutory scheme if it should so desire.”
Addressing the holes in same-sex marriage laws
In 2015, the U.S. Supreme Court’s historic decision in Obergefell v. Hodges made same-sex marriage legal in all 50 states. Since that ruling, advocates for the LGBTQ+ community have pushed to have the “constellation of benefits” that accompany marriage fully applied to same-sex couples. That covers things like property divestment, inheritances, child support, and custody rights.
However, the state Legislature has refused to amend the lawbooks to make clear the ambiguities regarding same-sex marriage. In addition, Louisiana lawmakers have repeatedly declined to recognize non-biological spouses’ custodial rights in same-sex relationships.
This matter has mostly been left to the interpretation of the courts. With no real legislative lead, Louisiana judges balk at applying Obergefell to custody fights, child support cases, and other marital rights issues.
During his appeal, Serrano argued that the U.S. Supreme Court decision granted same-sex marriages the same protections given to heterosexual couples, and 23rd Judicial District Judge David Arceneaux denied him equal protection when he ruled against his parental rights last July.
Upon reviewing Arceneaux’s ruling, the appeals court explained that paternal presumptions for non-biological spouses are not conclusive “presumptions of fact” under Louisiana filiation laws. They are, instead, “evidentiary” suppositions based only on the marriage contract during the time the child was born. The First Circuit’s chief judge, John Michael Guidry, and his fellow appellate judges Wayne Chutz and Walter Lanier III ruled that the presumption – found in Article 185 of the state’s civil code – does not apply in this case.
They wrote, “We have found no legal authority to support anything the presumption of Article 185 to establish parentage in instances where a child is born by means of a gestational carrier to a married couple, whether the couple is heterosexual, same-sex female, or same-sex male.”
Jonathan Rhodes, attorney for Serrano, refuted the appeals court and maintained his position that Obergefell does indeed establish parentage in same-sex marriages.
Late Friday, Rhodes stated, “This unequal treatment not only harms the institution of marriage, but it also harms Louisiana children. If our courts will not protect marriage equality, if they will not promote the best interests of our children, then it is incumbent upon the legislature to act for Louisiana families.” During his petition to the courts, Serrano requested to be given custody one weekday night each week and every other weekend, along with an alternating schedule for vacations and holidays. He also requested that his name be added to the child’s birth certificate. Judge Arceneaux left those requests open while he contemplated Serrano’s bid to establish paternity.
According to the appeals court, Serrano can still be awarded joint custody rights as a nonparent. With that said, under state law, Serrano would have to prove that Foret poses a risk of “substantial harm to the child” while he, on the other hand, could provide a more “wholesome and stable environment.” That is a substantially higher standard of proof than if he were deemed the parent and would have to prove that giving him custody right is in the child’s best interest.
Under state law, women in same-sex marriages are also denied the presumption of parentage.
An East Baton Rouge family court judge ruled last September that it was possible that a non-biological woman could retain custody rights after she divorced the child’s mother. That case is proceeding to a full trial where the judge will make a final decision on the custody issue.
The biological mother in this case is represented by Baton Rouge attorney Charles Blaize. Blaize also argued on behalf of Foret in the Terrebonne Parish case. He mentioned the nuances of the First Circuit Court’s recent decision and stressed the need for state legislators to launch measures to prevent Louisiana from having two separate sets of custody laws based on the sex/gender of the non-biological parent. Blaize said in a statement, “The issue of custody of children born during a same-sex marriage is far from settled.”
In the meantime, Serrano says that he is trying to deal with the reality of being legally removed from a child he considers his own. The 46-year-old has since returned to work and continues to come to terms with the court’s ruling, but stated last week that he still feels it is prejudicial.
Serrano said, “The biggest issue is that it’s unfair that one parent in a same-sex marriage has to jump through hoops and go through all these hurdles to secure the same rights for their child that opposite-sex parents don’t have to.”
Moments later, he added, “It’s like I’m completely nonexistent. I’m nobody in the eyes of the law. Like I’m just some kind of stranger to my son.”
*View court documents regarding this case by clicking the link below.
https://www.la-fcca.org/opiniongrid/opinionpdf/2023%20CW%201034%20Decision%20Writ.pdf
Read the Advocate’s related article here:
https://www.theadvocate.com/baton_rouge/news/courts/courts-rule-ex-husband-in-same-sex-custody-fight-notparent/ article_3ed05678-0fa4-11ef-a866-f379a2fdbb77.html
