New Britain judge creates new path to parenthood for mother in same-sex relationship

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NEW BRITAIN–There are a number of ways to legally become a parent in Connecticut: natural conception, adoption, artificial insemination and surrogacy contracts.

Well, now there’s another way after a court gave custody to Lauren Barse following her divorce.

In 2008 Barse’s same-sex spouse, Krista Pasternak, gave birth to a son via an anonymous sperm donor. The two ended up filing for divorce in August 2012, and Barse won an emergency ex parte order for custody of their son. An ex parte custody order is made when there is an immediate and present threat to the child if he or she remains in the other parent’s custody.

However, after Barse won sole custody,  Pasternak fought that Barse had no right to be the legal parent of their six-year-old son because she isn’t genetically related to him and never complied with the other legal methods, such as adoption, to becoming his legal mother.

The fact that Barse won custody is now considered a new route to parenthood that didn’t previously exist in Connecticut case law.

New Britain Superior Court Judge Lisa Kelly Morgan ruled that Barse is the legal parent of the boy despite the absence of biology or adoption because there is a “marital presumption” that she is related to the child that was born during her marriage to Pasternak.

In heterosexual marriages, if a child is born during the marriage, then the husband of the mother is presumed, legally, to be the father. In a third of states this presumption is absolute, though in many states, including Connecticut, a genetic test that proves another man has a 99 percent probability of being the child’s father can void the presumption.

In this case, of course, there is no possibility that the child is genetically related to Barse. However, according to The Connecticut Law Tribune, Morgan wrote in her opinion that the child’s legitimacy and Barse’s parenthood over him were important enough to ignore technicalities regarding marital presumption. She wrote that Barse “is presumed to be the minor child’s legal parent irrespective of whether she conceived or adopted the child, complied with the artificial insemination statutes, or entered into a valid gestational agreement, and the child therefore is presumed to be legitimate.”

Morgan also held that due to changing societal views regarding same-sex marriage, and the fact that same-sex marriage is legal in the state of Connecticut, married same-sex couples should be viewed the same in the eyes of the court as heterosexual couples. Therefore, if there is a marriage presumption that a husband is the father of a wife’s child, the same should be held true for two wives.

“The legal presumption that a child born in wedlock is the legitimate child of the mother and the mother’s spouse extends to same-sex couples, even if a party did not conceive or adopt the child and did not comply with artificial insemination statutes,” Morgan wrote in her decision.