Defining Legal Parenthood for Same-Sex Families

Laws around marriage equality have rapidly changed over the last decade, leaving some families in a legal gray zone. A case before the Ohio Supreme Court highlights the ways laws defining parenthood can fall short for people who have children in same-sex relationships.

In the early 2000s, Priya Shahani and Carmen Edmonds began a long-term, romantic relationship — but they were banned from marrying under Ohio law. Nonetheless, according to a legal brief filed by Edmonds, their relationship resembled a marriage in meaningful ways: they lived together, had children, and gave their children hyphenated last names that included both their surnames. Shahani gave birth to and was the biological mother of their kids, who were conceived using sperm from an anonymous donor.

Shahani and Edmonds broke up in early 2015. Their entire relationship — including the birth of their kids — took place before the U.S. Supreme declared in 2015’s Obergefell v. Hodges that bans on same-sex marriage violated the U.S. Constitution.

In 2018, Edmonds filed a petition for parental rights over the couple’s children. A lower court ruled she did not meet the definition of “parent” under Ohio law because she is not a biological parent of the children and was not married to Shahani when they were born. That decision was reversed on appeal. Edmonds can be recognized as a legal parent, the appellate court held, if she can prove that she and Shahani would have been married when the kids were conceived absent the same-sex marriage ban.

On appeal to the Ohio Supreme Court, Shahani argues that a “would have been married” standard violates separation-of-powers principles because the test effectively amends state laws that do not recognize common-law marriage — which only the legislature has the power to do. The court’s rewriting of legislation, she further maintains, violates the state constitution’s bar on retroactive changes to laws. In addition, she argues that her due process right to parental autonomy under the federal Constitution would be violated if she were required to share parental control with Edmonds, whom she considers a non-parent.

Edmonds, for her part, says the appellate court did not overstep its power by announcing a test that allowed for the recognition of the parental rights of people in same-sex couples. Judges have the power to extend laws when a statue has fallen “short of reaching every person who, under Equal Protection, must be included,” she says.

During last month’s oral arguments in the case, In re L.E.S., the justices — at least the few that asked any questions during the roughly 30-minutes of arguments — appeared skeptical of Edmonds’s argument. Justice Patrick DeWine said Edmonds was “advocating for an impossible standard.”

“No one actually knows what someone would have done,” DeWine asserted about the “would have been married” test. “Seems like a purely hypothetical exercise that I’m not sure how any court could really sort out.”

Shahani’s lawyer reiterated that the intermediate appellate court effectively created an exception to a state statute “without ever saying that’s what it was doing.” In any event, he said, Ohio’s ban on common law marriage, read in sex-neutral terms, applies equally to different-sex couples and same-sex couples.

“Obergefell did not require that states recognize common law marriage,” he added.

“Common law marriage is for slackers,” Edmonds’s lawyer said when Justice Patrick Fischer asked him to address that argument. “Common law marriage is for people who could have gotten married under Ohio law but they chose not to.”

Justice Jennifer Brunner, the lone Democrat the 7-member court, asked difficult questions of both sides, focusing on topics like the well-being of the children and the significance of a commitment ceremony that Edmonds alleged the couple participated in.

Until Obergefell declared marriage equality the law of the land, at least 15 states banned same-sex marriage. Ohio is just the latest to confront the lingering impacts of these past marriage bans on parental rights.

In 2023’s Pueblo v. Haas, for example, the Michigan Supreme Court ruled that a non-birth parent had standing to sue her former partner, the biological mother of the couple’s child, for joint custody. Relying on the equitable-parent doctrine — which grants custody over a child to an adult who has acted as the child’s parent but is not recognized as such by existing law — the court allowed the non-birth parent the opportunity to prove that she would have been married to the child’s biological mother if same-sex marriage was legal when the child was born.

And in a 2019 case concerning the children of same-sex ex-partners who had “built and shared a life together in the ten or so years” before they could legally marry, the Oklahoma Supreme Court declared that “a non-biological same-sex parent stands in parity with a biological parent.” Rather than a “would have been married” test, the court in Schnedler v. Lee ruled that a non-biological same-sex parent seeking custody must show that “he or she has engaged in family planning with the intent to parent jointly, acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child.”

“Their children see them as mom or dad,” the court said of non-biological parents in same-sex marriages, and “the law should treat them as such.”

But that decision has not removed all barriers to establishing parentage over children born to same-sex couples in Oklahoma — even those that were married when their children were born. In 2023, a lower court in Oklahoma denied parental rights to a woman who was married to the child’s biological mother when the child was born because, it said, she had presented no evidence “regarding the length of time it would take to establish a ‘meaningful emotional relationship with the child’” as required by Schnedler. Instead, the court in Wilson v. Williams said it could only allow the ex-wife custody if she had adopted the child or could show a pre-conception agreement establishing her as a parent.

The Wilson court also noted that because Oklahoma’s statute establishing a presumption of parentage for the spouse of a biological mother was enacted before the legalization of same-sex marriage, it was not meant to extend the presumption to people in same-sex marriages. “As Oklahoma has not yet adopted gender neutral language” in its parentage laws and the plaintiff “identifies as female and was born a woman,” the court said, she “cannot establish a father-child relationship.” An appeal in the case is pending before the Oklahoma Supreme Court.

Similarly, in last year’s Serrano v. Foret a Louisiana appellate court rejected a non-biological father’s attempt to establish joint custody over a child born by surrogate using his ex-husband’s sperm during their marriage. The plaintiff claimed that not providing him with the presumption of parentage granted under the state paternity statute was an “unconstitutional denial of the ‘constellation of benefits’ that Louisiana has linked to marriage.” The court held that the presumption of paternity did not extend to cases involving surrogacy; rather, parentage of children born by surrogate must be proven by the terms of the surrogacy contract.

Determination of legal parenthood has historically rested in large part on the marital presumption of parentage, which assumes that a child born during a marriage is the “biological child of the mother’s husband.” Under this doctrine, it is the marital relationship of the child’s parents that establishes paternity rather than the father’s biological relationship to the child. But, as Wilson and Serrano underscore, past legal discrimination against LGBTQ+ people can undermine efforts to establish parental rights even by same-sex couples who were married.

Maya Adhikari is a student at Rice University and a former Brennan Center intern.

Kathrina Szymborski Wolfkot is a senior counsel at the Brennan Center and the managing editor of State Court Report.

Suggested Citation: Maya Adikari & Kathrina Szymborski Wolfkot, Defining Legal Parenthood for Same-Sex Families, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/defining-legal-parenthood-same-sex-families