Kajko, Weisman & Colasanti, LLP

Massachusetts court rules on same-sex marriage custody case

Divorce attempts to resolve many matters between spouses and among family members. When spouses are parents, child custody becomes an important part of divorce proceedings. Recently, a child custody case involving a divorced same-sex couple required the Massachusetts Appeals Court to decide the scope of a particular law.

The spouses, both women, were married and had a child when one of them conceived through artificial insemination. State law provides that an artificially conceived child born to married parents confers equal parental rights on each of the spouses. The problem is that the law's wording does not reflect the Supreme Judicial Court's 2003 ruling which conferred certain legal rights on heterosexual marriages. The wording of the law refers to parents with the gender-specific terms "husband" and "married woman."

Using a literal reading of the law, the woman who conceived the baby attempted to preclude her ex-spouse from having any parental rights in the child custody proceedings. She argued that her ex-spouse could never qualify as a "husband" under the law.

A judge at Suffolk Probate and Family Court disagreed with that argument and gave each woman equal standing as parents. The Massachusetts Appeals Court affirmed that decision, using the Supreme Judicial Court's 2003 ruling as precedent to "determine that same-sex married partners are similarly situated to heterosexual couples in these circumstances." The court ruled that the word "husband" does not exclude same-sex couples from its scope.

This ruling provides additional clarity to the laws involving parental rights and child custody. But in any child custody case, the best interests of the child are viewed as the most important consideration. In this particular case, a guardian was sent to interview the child and determined that the child likes being with each parent equally.

Source: The Boston Globe, "Same-sex parents share role, court says," John R. Ellement, Feb. 3, 2012.

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