Same Sex Couples
Same-sex couples can marry in California. All of California’s family law rules that apply to opposite-sex couple also apply to same sex couples at marriage and at divorce.
California’s Domestic Partnership Law
Before California recognized same sex marriage, same sex couples could register as domestic partners. All of California’s family law rules apply to state-registered domestic partners (including same sex couples who registered in the days before In re Marriage Cases, and opposite sex couples over the age of 62). All income and all assets and savings acquired after registration, and all assets accumulated from earned income are presumed to be equally owned community property, regardless of titling of deed, asset, or account. The rules of community property also apply to savings accounts, stock options and accounts, real property acquired, businesses developed, and IRA/pension benefits.
The most significant effect of California’s domestic partnership law is that terminating of the domestic partnership is accomplished through the same judicial process as is used to dissolve marriages (i.e., the domestic partners must get divorced in court). The court will divide all community property. The court will resolves issues of child custody and visitation. Like any “married’ couple, the lesser-earning domestic partner is eligible for post-separation spousal support as determined by the family law court judge, based on statutory factors. Likewise the family law judge will apply California’s statutory child support guidelines and impose child support orders when appropriate. Please see the balance of our website’s family law sections for more information on these substantive areas of California divorce law.
Summary of laws that affect gay, lesbian, bisexual and transgender people in California.
- Couples/partners law:
- Licenses same-sex marriage? Yes.
- Bans recognition of same-sex unions? No
- Partner benefits for state employees? Yes
- Parenting record:
- Adoption by gay and lesbian individuals: Yes
- Adoption by same-sex couples: Yes
- Second-parent adoption granted: Yes
- Safe schools law:
- Protects gay and lesbian students? Yes
- Protects transgender students? Yes
- Non-discrimination law:
- Sexual orientation protected? Yes
- Gender identity protected? No
- Hate crimes law:
- Sexual orientation protected? Yes
- Gender identity protected? Yes
Second Parent Adoptions
Second parent adoptions are becoming increasingly popular with same sex couples. The California Supreme Court has ruled that second parent adoptions are valid.
Single Parent Families
California provides a favorable legal environment for surrogacy and egg donation. California Courts have taken the lead in favorably extending existing California Family Law statutes to protect all parties to surrogacy and egg donation pregnancies. Prospective parents, surrogates and egg donors can be reasonably certain that their intentions will be upheld in California. The California courts have consistently upheld the intended parents’ rights and obligations to their parenthood when they use a surrogate or egg donor to help create their families. This result will generally hold true regardless of whether the parents use their own genetic material, donated eggs or artificially inseminate a surrogate.
Marriage and alternative conception
In a “traditional surrogate” arrangement, the surrogate and her egg will be fertilized through artificial insemination with the sperm of the intended father. Thus, the surrogate is biologically related to the child. In a gestational surrogacy, the surrogate has no biological relationship to the child.
In California, when a married couple used anonymously donated sperm and egg and a surrogate to carry the child, they are the parents of the child. The parental status prevails even if the couple divorces during the pregnancy and prior to the birth.
The California Supreme Court has also ruled that a gestational surrogate has measured parental rights to a child born to her; and that a gestational surrogacy contract is legal and enforceable. The court held that the one who intended to “bring about the birth of a child that she intended to raise as her own — is the natural mother under California law.”
The California Supreme Court has also ruled that the rights of the intended parents can prevail over a surrogate. The Court wrote that the intended mother to a surrogacy contract using a donated egg could prove she was the mother under existing California Family Code Section 7610 by virtue of her consent to “. . . a medical procedure which results in a pregnancy and eventual birth of a child.” As such, although the two women to the surrogacy contract could both prove their maternity, the “tie” is broken in favor of the woman who was intended to be the mother as expressed in the surrogacy or egg donation contract.