Same-Sex Divorce Attorney in Danvers, MA

Parental Rights When Legal Parent Status Is in Question

When both spouses are listed on a child’s birth certificate as biological parents, Massachusetts courts are likely to treat each parent on equal footing in custody proceedings. The analysis becomes more complicated when only one spouse holds formal legal parent status.

A non-biological parent who didn’t take additional legal steps to establish parental rights may face a disadvantaged position in custody proceedings. Two doctrines in Massachusetts law can provide a path forward in those situations.

• Presumed parent status: The SJC’s 2016 decision in Partanen v. Gallagher established that a person without a biological connection to a child may be presumed a parent under Massachusetts law if they received the child into their home and openly held the child out as their own.
• De facto parent doctrine: A non-biological parent who has functioned in every practical sense as a parent may invoke this doctrine, though it doesn’t automatically place them on equal legal footing with a biological parent.

All custody determinations, including those involving non-biological parents, apply the best interests of the child standard. Same-sex couples who used assisted reproductive technology, including artificial insemination, surrogacy, or egg or sperm donation, should discuss parental status questions with an attorney at the outset of divorce proceedings. Addressing these questions early can help reduce complications that are harder to resolve once litigation is underway.

Pre-Legalization Cohabitation & Asset Division

Massachusetts courts focus on when assets were acquired when dividing marital property. For same-sex couples who lived together for years before May 17, 2004, this creates a potential dispute: assets accumulated during that pre-legalization period may be treated differently than those acquired after the legal marriage date.

Courts may examine the economic character of the relationship before the marriage, including whether the parties would have married sooner had the law permitted it and whether their financial lives were structured as a joint enterprise. Civil unions or domestic partnerships formed in other states prior to the Massachusetts marriage can further complicate this analysis.

A couple with a long cohabitation history may have grounds to argue that their economic marital partnership, and therefore the scope of the divisible marital estate, began earlier than the legal marriage date. Whether a court agrees depends on the specific evidence and circumstances. This is one area where working with attorneys who are current on how Essex County courts approach these questions carries real practical value.