Same-Sex Parent Child Custody(California Family Code 3011)

Over the past decade, same-sex parents in California have obtained many rights that same-sex couples in many other states do not enjoy. While the system is not perfect, strides are being made to protect the rights of any same-sex parent who have raised a child together from birth or through adoption. With its recent rulings, the California Supreme Court has granted same-sex couples the same rights that opposite-sex couples enjoy with regards to child custody, visitation, and child support.

Additionally, anti-discrimination laws also protect parents who may have a child as a result of a heterosexual relationship, but one parent is attempting to use sexual orientation to deny the other parent child custody and visitation rights. Unfortunately, judges who do not feel comfortable with homosexuality may not always follow this law, and thus, these matters can be very complex.

If you are a parent who is seeking child custody and visitation rights over your child from a same-sex relationship, it is important that you consult with an experienced family law attorney to discuss the complex legal issues associated with same-sex parent child custody cases. The skilled family law attorneys at Wallin & Klarich can evaluate the details of your case and advise you of your legal rights as a same-sex parent.

In California, same-sex parent child custody cases are to be treated equally under the law as any other child custody case involving opposite-sex parents. Therefore, when making a determination regarding child custody and visitation, the courts will rely on California Family Code Section 3011 in determining a custodial arrangement that is in the best interest of the child. It is important to note that many of the California Family Codes regarding child custody and visitation have been extended to include same-sex couples by the California Supreme Court. Thus, if you are experiencing discrimination in the family court system because you are a same-sex parent, you should contact an experienced family law attorney immediately.

Case History of Same-Sex Parent Child Custody Rights

On August 22, 2005, the California Supreme Court decided to extend child custody, visitation, and child support rights to same-sex couples. This was a huge victory for same-sex couples,as these decisions effectively extended the California Family Codes to same-sex couples and treated same-sex partners who raise children together, whether through artificial insemination or through adoption, as though they were opposite-sex couples. These decisions effectively implemented the “best interests of the child” standard for use in cases involving same-sex couples, and provided that children of same-sex couples would also be entitled to child support.

Child Custody Case

Orange County Child Custody Lawyers
California is one of the few states that allow same-sex parents to obtain child custody rights.

In K.M. v. E.G. (2005) 37 Cal.4th 130, a lesbian couple had twins together by implanting an artificially inseminated egg from one partner (K.M.) into the other partner (E.G.). K.M. signed an agreement with the fertility clinic that she would be relinquishing all parental rights to any offspring that was born from her fertilized egg. Despite entering into this agreement, K.M. believed that she would be raising any children that resulted from the in vitro fertilization as her own. When the couple terminated their relationship a few years later, E.G. took the twins with her, which resulted in K.M. filing for child custody and visitation.

The California Supreme Court decided that the agreement that K.M. had with the fertility clinic was null and void, as “it has been long established that parents cannot, by agreement, limit or abrogate a child’s right to support.” By relinquishing all parental rights to her children, K.M. was effectively agreeing to limit her biological children’s right to support. The Court further concluded that because K.M. intended to raise her biological offspring with E.G., and the parents effectively did so until their relationship ended, that K.M. was considered the “natural parent” of the twins and should be awarded rights to custody and visitation.

Child Support Case

In Elisa B. v. Superior Court (2005) 34 Cal.4th 108, two women who were living together as a couple and each underwent artificial insemination in order to raise children together. Elisa had 1 child and Emily had twins. Emily stayed home with all three children while Elisa worked to provide for the family. The three children all had the same hyphenated last name, and each held the children out as their own during the relationship. The two women did not legally adopt each other’s children. After the two women separated, Elisa informed Emily that she could no longer provide support for her and her twins.

The California Supreme Court decided that Elisa would be considered the legal parent of all three children, as Emily had the children because of the promise that Elisa made that she would support them. The Court stated that “if both parents of an adopted child can be women, we see no reason why the twins in the present case cannot have two parents, both of whom are women.” With this decision, the Court ruled that Elisa would be obligated to pay child support because she was the de facto parent of the twins.

The California Family Code on Same-Sex Parent Child Custody

While the California Supreme Court cases did not change the California Family Code to include same-sex couples in the wording of the laws, the cases effectively changed the interpretation of the laws. While the codes still appear as though they apply to only opposite-sex relationships, these recent California Supreme Court cases now extend these laws to same-sex couples as well.

The Best Interest of the Child Standard

Under Family Code Section 3011, in child custody cases, the family courts will always be guided by what is in the best interests of the child. Thus, all child custody and visitation orders will be determined by what it is in the best interests of your child. In determining what is in the best interests of your child, the family law court will consider:

  • The health, safety, and welfare of your child;
  • Any history of domestic violence or substance abuse by you or the other parent;
  • The nature and amount of contact with both parents;
  • The age of your child;
  • You and the other parent’s ability to care for the child;
  • The emotional relationship between you and your child, as well as between the other parent and your child;
  • The duration and adequacy of your child’s living arrangements;
  • Where your child goes to school; AND
  • Your child’s involvement in the community.


While the courts should follow the best interest of the child standard when evaluating same-sex couple’s child custody and visitation arrangement, this does not always happen. Because of the potential for sexual orientation discrimination, it is important that you seek the assistance of an experienced family law lawyer at Wallin & Klarich to advise you of your rights and guide you through every step of this difficult process.

The Same-Sex Parent Child Custody Process

The same-sex parent child custody process is very similar to the process for opposite-sex couples. Keep in mind that if you and the other parent can agree on a child custody arrangement, and file that agreement with the court, then there would be no need to appear in court. However, even if you are able to come to an agreement with the other parent, it is important that you seek the advice of an experienced family law attorney to ensure that your rights as a parent are protected in the agreement.

If you wish to obtain a same-sex parent child custody order through the courts, you must file paperwork with the family law courts showing why you should be granted custody and visitation rights over your child. The court will then set up a hearing, or series of hearings, depending on how complex your case is, so that the judge can obtain all of the facts necessary to determine what type of custodial arrangement would suit the best interest of your child.

It is important to remember that the family law courts always strive to make orders that are in the best interests of your child. Thus, it is very important that you frame your arguments in a manner that will show the court that the custodial arrangement that you prefer is better for your child than the other parent’s proposed arrangement. The experienced family law attorneys at Wallin & Klarich can help you to fill out all of the necessary documents and appear in court on your behalf, to ensure that your case is argued in the most effective manner possible.

Frequently Asked Questions about Same-Sex Parent Child Custody

1)Are same-sex parents and their children entitled to receive child support?

Yes. If you have a child custody order that is in your favor as a same-sex parent, you will be entitled to the same rights as any opposite-sex parent. The California Supreme Court Case of Elisa B. v Superior Court (2005) 34 Cal.4th 108 extended the Family Code sections relating to child support to same-sex couples who held children out as their own and have now separated.

The determination on whether you should receive child support or how much you should receive will depend on the circumstances of your case. The family law courts will take into consideration the income of both parents, as well as the amount of custodial time that each parent spends with your child. It is important to remember, that if you receive a child support order in your favor, you cannot keep your child from having visitation with the other parent merely because they are not paying support. Child support and custody orders are two separate orders and must be followed separately.

2)How can I ensure that the courts will not discriminate against me because of my sexual orientation?

The laws regarding same-sex parent child custody have changed drastically over the last decade. However, there may be judges who feel uncomfortable with homosexuality and could discriminate against you based on your sexual orientation. Without the assistance of an experienced family law attorney, it can be very difficult to ensure that you are not being discriminated against or to overcome the discrimination.

While it is not foolproof, one way in which you can attempt to prevent the discrimination is by taking preventative measures prior to a custody dispute. Under California Family Code Section 297.5, “registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law as are granted and imposed upon spouses.” This means that if you register as a domestic partner with your partner, then you should be granted the same rights under the law as a married couple with regards to child custody, visitation, and child support.

Because it is difficult to anticipate that you will have any issues with your partner or with the courts, the best way to attempt to prevent discrimination is to hire an experienced Wallin & Klarich family law lawyer when you have a same-sex parent child custody matter that needs to be resolved.

3)What if I have a child from of an opposite-sex relationship, can the other parent use my sexual orientation against me to obtain custody over my child?

Both California and Federal anti-discrimination laws prohibit discrimination based on the sexual orientation of one of a child’s parents. California courts typically will not consider a parent’s sexual orientation in making a child custody and visitation order, unless it can be shown that the sexual orientation of one of the parents adversely affects or harms the child. A number of court cases have come down through the years, ruling that that the sexual orientation of a parent by itself does not adversely affect or harm a child. Therefore, sexual orientation should not be considered when making a “best interests of the child” determination.

As always, it is important to keep in mind that if a judge is uncomfortable with homosexuality, it may be more difficult to convince him or her that the sexual orientation of a parent will not adversely affect or harm a child. Therefore, you should always seek the advice of an experienced family law attorney when dealing with child custody issues that involve sexual orientation.

4)How can I find an experienced same-sex parent child custody attorney in Southern California to assist me?

Same-sex parent child custody cases are difficult matters for everyone involved. It is very important to have an experienced same-sex parent child custody attorney to fight for you. The skilled family law attorneys at Wallin & Klarich have won many child custody cases for over 30 years. Our attorneys have the knowledge and experience to help you with the intricate nature of your same-sex parent child custody case.

With offices located in Orange County, Los Angeles, San Diego, Riverside, Torrance, West Covina, Sherman Oaks, Victorville, San Bernardino, and Ventura, we are always available, wherever you happen to live. To consult with a Wallin & Klarich family law lawyer today, call us at (888) 749-7428. We will be there when you call.

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