Same-Sex and Different-Sex Relationships: Is it Time for Convergence?

Abstract

Two long-term shifts in the family have remade family law in the United States. One involves the fight of same-sex families for recognition. Barred access to marriage and in many jurisdictions to adoption, same-sex couples have fought for the expanded use of contract and newly created statuses to forge families of choice. During the same period, different-sex couples have also forged new types of families as marriage has become optional, and couples age and bear and raise children in the context of more fragile relationships. The courts have responded to these two developments through the use of different doctrines, sometimes extending, for example, domestic partnerships and civil unions solely to partners who could not marry, or sometimes interpreting equitable principles to recognize same-sex partners without a biological tie as parents of a child while addressing the parental standing of traditional step-parents through a different set of legal doctrines.

This chapter argues that three developments, in particular, may drive that convergence. The first is the ability of same-sex couples to marry. This raises the issue of whether marriage will become a bright-line marker between committed couples and those in more contingent relationships, particularly in determining parental responsibility at birth. The second involves the continuing role of functional parentage. Will doctrines such as parentage by estoppel, de facto parentage, and psychological parentage that helped same-sex parents gain recognition be extended to stepparents and other different sex partners or will they decline in importance? Third, the chapter considers recognition of more than two legal parents and argues that the key to acknowledging the role of sperm donors, stepparents and other third parties is the creation of statuses that may involve the unequal allocation of parental rights and responsibilities. In all cases, however, evolving family law principles should not depend on the sex of the parties.

Keywords: family law, parentage, marriage, custody, stepparents, same-sex couples, three parents, nonmarriage