Army & Roche
Complex Business & Family Law Litigation™
Screen Shot 2016-12-08 at 1.50.29 PM.png

Army & Roche Resources

Resources & News

Gender-specific Language in Custody Laws Lead to Challenges

Last week, the Massachusetts Appeals Court set a precedent for child custody issues for same-sex couples in the state. The court rules that although some statutes include gender specific language, the laws can still be applied to same-sex couples.

On February 2, court ruled that custody laws apply to children conceived by artificial insemination in all marriages, heterosexual or same-sex. Key to the case was the word "husband," and the question of whether it could ever apply to a woman.

When two women began proceedings to dissolve their marriage, both women sought custody of their child, conceived by one of the women through artificial insemination.

The biological mother of the child asked the court to end her ex-spouse's parental relationship to the child. The basis of this request was that because the ex-spouse is a woman, she could not be considered the biological father or a "husband" under state custody laws.

The court determined that this was a matter of outdated semantics: "We do not read 'husband' to exclude same-sex married couples, but determine that same-sex partners are similarly situated to heterosexual couples" in custody disputes.

The woman was inseminated, with the support and approval of her partner, before the two were legally married. The court ruled that because the child had been born after they were married, "the child is the legitimate child of both parties."

In upholding the parental rights of the spouse who did not give birth to the child, the court set a precedent that gender-specific language in custody statutes can be adapted to same-sex marriages.

Source: Boston Globe, "Appeals Court: Custody law covers children of both same-sex and heterosexual marriages conceived by artificial insemination," John R. Ellement, Feb. 2, 2012