SAME SEX COUPLES can marry in California. All California law’s applicable to opposite-sex couples also apply to same sex couples at marriage and at divorce.
CALIFORNIA’S DOMESTIC PARTNERSHIP LAW:
At present, in addition to marrying, same sex couples can also 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). In other words, all income, assets, debts acquired after registration are presumed to be community property, regardless of how titled.
The same judicial process used for ending a marriage is the same for ending a domestic partnership. As with the dissolution of a marriage, the court will divide all community property, assets and debts, establish child support, child custody and visitation rights, and domestic partner support. See more detailed information under Divorce on this website.
All duties and benefits are retroactive to the couple’s registration date rather than January 2005. This retroactivity raises Constitutional due process questions that will need to be resolved by future court decisions.
Now that same sex couple can marry, it is likely that the future ability to register as domestic partners will be abrogated.
SECOND PARENT ADOPTIONS:
Second parent adoptions are popular with same sex couples. Second parent adoptions are valid under California law.
SINGLE PARENT FAMILIES:
California courts have consistently upheld the intended single parent’s rights and obligations to his/her parenthood when the parent uses his or her own genetic material, donated eggs or artificially inseminates a surrogate.
MARRIAGE AND SURROGACY:
There are two types of surrogacy.
In a traditional surrogacy arrangement, the surrogate’s own egg is fertilized via artificial insemination with the sperm of the intended father and, thus, is biologically related to the child.
In a gestational surrogacy arrangement, the intended parents use an anonymously donated egg and sperm to impregnate a surrogate. Thus, in this arrangement the surrogate is not biological related to the child.
The California Supreme Court has upheld the validity of surrogacy contracts and has ruled that the rights of the intended parents can prevail over a surrogate. The Court has held that although both the biologically-related surrogate and the intended mother both have a claim to maternity, the Court has favored the rights of the intended mother over the surrogate as expressed in the surrogacy or egg donation contract.
The California Supreme Court has also upheld the validity of gestational surrogacy contracts. The legal parents are the intended parents as stated in the surrogacy contact. Moreover, their parental rights prevail even in situations where the intended parents divorce prior to the child’s birth. However, the Court has also ruled that a gestational surrogate has some measured parental rights to a child born to her.
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