Although same-sex marriage is legal in Louisiana, the legislature has not yet changed the laws regarding filiation. However, using the laws that exist, there are circumstances in which a divorcing, same-sex spouse may owe support for a child born during the marriage even if he or she is not the child’s biological parent.
Filiation is the legal relationship between a child and his parent. Louisiana Civil Code, Art. 178. The existence of this legal relationship is established by proof of maternity, or paternity, or by adoption. Louisiana Civil Code, Art. 179. Filiation gives rise to the obligation to support a child. Louisiana Civil Code, Art. 224. If there is no filial relationship, there is no duty to pay and no right to receive child support.
In same-sex marriages between two women, maternity is usually easy to prove. It is a biological fact. If a woman has adopted a child, her maternity is legally established by the adoption decree.
Paternity, however, applies by its definition exclusively to a man. Where there is no “man” in the marriage, there arguably can be no paternity. In same-sex marriages between women, the paternity that creates a filial relationship between a person and a child cannot exist. Without the filial relationship, no duty to pay child support can arise.
Does this mean that a non-biological parent spouse in a same-sex marriage between women cannot be required to pay child support? The answer is not clear.
At present, there is no method that a non-biological parent (spouse or not) can use to establish a parental relationship with the partner’s biological child except adoption. However, there are other articles in the Louisiana Civil Code that suggest that a non-biological parent spouse is a parent for filiation purposes in limited situations.
Article 185 of the Louisiana Civil Code states that the “husband” of the mother is presumed to be the “father” of the child who is born during the marriage or within three hundred days from the date of the termination of the marriage. It takes two people to make a marriage. If one of those people is the “mother”, then arguably the other person is the “husband” and the “father” of the child.
It follows that in a same-sex marriage, if one of the women is the “mother,” the other woman can be considered to be the “husband” and the “father” of children born during the marriage. Conversely, the child born during the marriage (or within 300 days of its termination) should be entitled to assert the presumption of paternity against the non-biological parent spouse in an action for support.
A “husband” may disavow paternity. If a woman is the “husband,” then she should be able to disavow the child by clear and convincing evidence that she is not the father. Her testimony must be corroborated by other evidence. Her testimony would be that it is a biological impossibility for her to be a “father” of a child, since she is a woman. If necessary, she could request DNA tests to further support her claims. In such cases, it would appear that a court would have no alternative but to hold that she is not the “father” and is not, therefore, obliged to pay child support. In some cases, however, this may not be the end of the story.
Article 188 states that the husband of a mother may not disavow a child born to his wife as a result of an assisted conception to which “he” consented. If a same-sex married couple agrees that one of them will be artificially inseminated or produce a child in some other manner of “assisted conception”, the non-biological spouse will not be able to disavow the child. Even though she cannot biologically be the child’s parent, much less its father, she may remain the child’s legal parent. As a legal parent, she can be made to pay support.
These same Civil Code articles may enable one or both of the spouses in a same-sex male marriage to claim child support. If one of the men donates sperm for the artificial insemination of a surrogate, he is the biological parent of that child. Is that child the result of “assisted conception”? Can his spouse claim a filial relationship with the child as a result of the presumption of paternity and an inability to disavow it? Louisiana statutes dealing with the enforceability or surrogacy agreements would allow the biological mother to continue to assert her filial relationship with such a child. Would that mean that there are three filial relationships? Louisiana law has not yet answered these questions.
There is another unanswered question. What if the same-sex couple has not married but has a child in one of the ways described above? The child would be “illegitimate”, that is, born outside of a marital relationship. Because of its “illegitimacy”, such a child would not be entitled to assert the presumption of paternity against its non-biological “parent” or defend against a disavowal action. Does that disparity violate Louisiana’s constitutional prohibition against arbitrary, capricious, or unreasonable discrimination based on birth?
The dissolution of same-sex marriages with children is an uncharted area of the law. Courts must often rule on issues like child support and child custody using laws intended for heterosexual couples and biological or legal parenthood. Those laws may not fit your circumstances. If you are a partner in a same-sex relationship, married or not, with children, and your relationship is failing, your first step should be to seek the advice of a family lawyer such as Mr. Cosenza.