In any divorce or separation, child custody is a contentious and stressful issue. A same-sex divorce comes with its own challenges, as the law doesn’t always address the nuances of LGBTQ+ child custody. If a couple isn’t married but has children together, determining child custody can be much more complex. It’s essential for same-sex couples to understand how they can establish legal parentage in Missouri. Not only does this help in the event of separation, but it can aid in other legal matters and ensure both parents have rights to their children.

Parental Presumption and Paternity in the U.S.

For opposite-sex couples, parental presumption, or marital presumption, is the legal assumption that married couples are the biological parents of the children that one of them gives birth to. Parental presumption is only not applicable if the parents or another party wishes to claim different paternity rights and responsibilities.

Since 2015, marriage equality has applied to the entire country. Unfortunately, this extension of marital rights to LGBTQ+ couples does not necessarily extend to parental presumption. If a same-sex couple are not biological parents of the child, marriage does not automatically give them parental rights.

Though there may have been a legal assumption after 2015, it was often better for parents to take steps to establish parentage if only one person was the biological parent of the child. Few parents want to risk their rights to their children on a legal assumption. A family law attorney can help you establish parental rights through adoption or a legal order of parentage.

Parental Presumption in Missouri

However, there were additional legal rulings that changed how paternity was established. In a 2021 ruling, the Missouri court determined that presumed paternity laws are gender-neutral, that parents in a same-sex marriage are assumed to be the legal parents, and that they the right to pursue child custody.

This applies no matter how the non-birthing parent was involved in conception. Assisted reproductive technology includes:

  • Surrogacy
  • Artificial insemination
  • In vitro fertilization
  • Egg, sperm, or embryo donor

Though presumed paternity applies, a written agreement between all parties or a Decree of Adoption can ensure a stronger legal parentage claim.

Unmarried Couples and Establishing Legal Parentage

Just as with opposite-sex couples, LGBTQ+ couples must establish legal paternity of the non-birthing parent if they are unmarried. All couples have the equal right to list their spouse or partner on a birth certificate, regardless of gender. However, a birth certificate does not establish parental rights.

Couples should file for a court-ordered Decree of Adoption. This provides:

  • Legal recognition of both parents as legal parents
  • Established parental rights
  • Recognition of these parental rights in other courts and states

After adoption is complete, a new birth certificate can be requested.

Custody Rights in a Divorce

If a married same-sex couple is pursuing a divorce, custody rights are similar to those of an opposite-sex couple. If each spouse has legal parental rights to their kids, such as via adoption, then both have equal rights to custody and visitation and equal responsibility for child support.

In this situation, divorce and custody proceedings would behave similarly to those of opposite-sex couples. Spouses can go through a mediation process to determine a separation agreement and child custody together. If they can’t come to an agreement, the Missouri judge will determine custody based on the child’s interests and several other factors.

However, if one spouse does not have legal rights over children, it’s more complicated. In Missouri, they have the right to petition for custody and visitation during divorce if they are a co-parent of the child or children. For a non-legally recognized parent to succeed in a third-party custody petition, Missouri courts must determine:

  • The legal parent is unfit, unsuitable, or unable to care for the child
  • The child’s welfare requires a third-party custodian
  • A third-party custody order is in the child’s interests

If a non-legal parent is not granted custody rights, they are also not expected to cover child support.

Same-sex divorces are significantly more complicated without established paternity. That’s why LGBTQ+ couples are strongly encouraged to file for a Decree of Adoption while they are together. This establishes parental rights now and in the future.


Q: At What Age in Missouri Can a Child Decide What Parent They Want to Live With?

A: In Missouri, the court may allow children 12 or older their preference for custody decisions. However, the court looks, above all, at the parents’ interests, which may clash with the child’s wishes. The court may ask the child’s opinion, but is not required to abide by it, only to give it reasonable consideration.

Q: Can Two Moms Be on a Birth Certificate in Missouri?

A: Yes, Missouri upholds the right of same-sex couples to put the names of both parents on a birth certificate. The partner or spouse who gives birth to the child will always be listed on the certificate as the child’s mother, and the other parent can be listed on the birth certificate. However, it’s important for same-sex couples to realize that a birth certificate does not provide unmarried couples with parental rights. Instead, they need to file a Decree of Adoption with the state.

Q: How Do I Get Temporary Custody of My Child in Missouri?

A: Temporary custody refers to the period of time before a final court order is made in a divorce. One or both parents can request a temporary court order for custody and visitation. You can simply file a motion with the court to petition for temporary orders. Temporary orders are not required in a Missouri divorce. In an amicable divorce, they may be unnecessary. However, if divorce is contentious, one or both parents may wish for a court-enforceable custody and parenting plan order during litigation.

Q: What Is Third-Party Custody?

A: Third-party custody is when someone other than a legal parent wishes to apply for parental rights and custody. A third-party custodian is frequently the child’s grandparent but can be anyone, including a non-legal parent. Applications for third-party custody are more likely if there is a strong existing relationship and support with the child. To obtain third-party rights, it must be proven that the legal parent or parents are unable to care for the child, the child’s welfare requires a change in custody, and it is in the child’s interests.

Work With a Columbia Family Law Attorney

When you need to legally establish your child’s parentage as a same-sex couple, it’s essential to understand your legal rights and responsibilities. Let Stange Law Firm guide you through the process.