Legal Commentary

Same-Sex Marriage Ban Doesn?t Preclude Recognizing Same-Sex Couples? Parental Rights

By Eugene Volokh

From Prashad v. Copeland: ?[Ms.] Prashad, [Mr.] Copeland, and [Mr.] Spivey entered into a surrogacy agreement in Minnesota. Prashad was artificially inseminated with the sperm of both Copeland and Spivey. As a result, A.C.C. was born in Minnesota on August 10, 2004. Copeland was listed on the birth certificate as A.C.C.?s father, even though no DNA test had verified biological paternity at that time.? Eventually, as a result of the litigation, a paternity test was done and ?Spivey was determined to be the biological father of A.C.C.?

At first, the parties got along, with Copeland and Spivey raising the child but Prashad sometimes visiting the child (who was living in North Carolina with Copeland and Spivey). Eventually, though, Prashad sought custody of the child. The North Carolina court entered an order under which ?Copeland and Spivey were awarded primary legal and physical custody of A.C.C.; Prashad was awarded secondary legal and physical custody.? Copeland and Spivey later moved to Virginia, and Prashad sought custody again, claiming custody in preference to Spivey, and asserting that Copeland could have no parental rights at all.

The Virginia Court of Appeals held that the North Carolina order must stand, on full faith and credit principles. But then it had to deal with Prashad?s objection that recognizing the same-sex couple?s parenting rights was barred by the federal Defense of Marriage Act, and by Virginia constitutional and statutory provisions that barred recognition of same-sex marriages or civil unions; here, for instance, is the relevant constitutional provision:

That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

The court rejected Prashad?s argument; here?s an excerpt that captures the court?s general view:

like Virginia, North Carolina does not recognize same sex marriage. Furthermore, the only reference to Copeland and Spivey?s homosexual relationship appears in the November 2, 2005 order establishing that North Carolina had jurisdiction over the matter. It is highly illogical that the North Carolina court granted Copeland?s custodial rights based on a relationship that the State of North Carolina does not recognize and that the North Carolina court does not acknowledge in its orders....

[I]t is readily apparent that the North Carolina court determined that Copeland?s custodial rights arose out of the fact that he has a legitimate interest in A.C.C. for purposes of custody and visitation, and not from his relationship with Spivey being treated as a marriage under the laws of North Carolina. In light of the fact that Copeland has a legitimate interest in A.C.C., we cannot say that registration of the custody orders is ?tacit? recognition of Copeland and Spivey?s relationship.

Sounds exactly right to me. It?s true that most parenting relationships arise within a marriage, and while most court orders determining parental rights happen as a result of the breakup of a marriage. But parenting rights and marital rights are legally quite different. Unmarried opposite-sex couples generally have much the same parental rights as do married couples (setting aside some special problems of proof), and the same access to child custody adjudications. There?s no reason to read bans on same-sex marriage as precluding the recognition of same-sex couples? custody rights.

Full post as published by The Volokh Conspiracy on December 05, 2009 (boomark / email).