On Same-sex Marriage – It’s ALL About the Children-Part 1


With New York’s recent legalization of same-sex marriage, I have decided to revisit an article I wrote before California passed proposition 8, banning same-sex marriage in our state. As the fight for same-sex marriage rages on, it is important that we keep in mind the legal ramifications of not allowing same-sex couples the same rights, especially regarding custody of their children, as heterosexual couples.

In the battle and rhetoric over same-sex marriage, one very important member of the family is being overlooked — the children born or adopted into same-sex families. Same-sex marriage will give these children the right to be raised by both their parents, at last.

Over the last 34 years in my role as a Family Law Custody Attorney and Marriage, Family, and Child Therapist, I have watched California’s laws evolve to include consideration of same-sex partnerships. While heterosexual couples have always had the right to marry and fight for custody in case of divorce, those rights were not available to same-sex parents until recently, and second-parent adoptions still do not exist in some states. As such, many non-biological same-sex partners have lost all access to their children after a break-up, to the detriment of the parent and the children.

Before the issue of same-sex marriage came to national attention, in California only a few courageous county judges allowed the non-biological same-sex parent to adopt the biological child of their partner, overriding the California’s policy prohibiting the placement of children in same-sex households. For years, short of adoption, the non-biological parent had no legal redress to continue his or her relationship with their child past the break-up. The courts held that lesbian and gay partners failed to fit into the legal definitions of “parents” assigned under the law as children were not legally allowed to have two “fathers” or two “mothers,” leaving non-biological partners no visitation rights to the children they had helped raise.

The issue of same-sex marriage is not going away, and as more same-sex couples decide to have children, this is an issue that will need to be addressed by our legal system. According to the American Academy of Child and Adolescent Psychiatry, millions of children in the United States have LGBT parents, and the 2010 census showed that about 126,000 same-sex households in California include children.  Same-sex families are just like heterosexual families, they break up too, and when they do, they often fight over custody of their children.  With these growing numbers, our laws need to evolve to protect same-sex partners and their children, and same-sex marriage is a way to give these families the same rights to custody and visitation enjoyed by heterosexual couples using the standard of “the best interest of the child.”

Recently, the law has changed, and for the better of all our children.  First with domestic partnership registration and now with marriage, it is no longer possible for one parent to bar their children from seeing their second parent.  The California Supreme Court has even recently recognized the rights and obligations of the non-biological parent to pay child support.  Few same-sex couples have registered, and not all couples will marry, however, it is finally possible before a child is conceived or adopted for both parents to commit equally to raising the child and be protected under California law if they take the proper steps.

It is the children who come out ahead with same-sex marriage, and for that reason, if no other, every person who purports to believe in strong families where children can be loved by both parents should support the rights of same sex marriage.


If you are in a same-sex relationship and are thinking about having children, check out the Human Rights Campaign website for ways to ensure your custodial rights, or if you are in California, call our office at 415-474-1011.  for a consultation.

Please leave a comment and share your story!

Vivian L. Holley


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