In states like New York, where gay marriage is allowed, divorce proceedings go about as smoothly as they would for heterosexual couples. But in states where same-sex marriage is not recognized, this can be a completely different story. Readers of our blog may have seen this play out in a Nevada courtroom this month where the allocation of child custody needed to be determined for two lesbian women in a state where gay marriage is not considered legal.

According to legal documents, one of the women provided the egg, which was fertilized by an anonymous donor, while the other woman carried the child. Listed as the mother on the child’s birth certificate was the woman who carried the child and both women signed a co-parenting agreement prior to the child’s birth. But when the couple broke up a year later, things became incredibly complicated.

This was due in part because of a decision made by a judge at the time. According to the judge, the woman who gave birth to the child was “merely a surrogate” and had no legal right to custody under Nevada law despite having signed a co-parenting agreement.

This month, the state’s Supreme Court overturned this decision, finding that the surrogate mother did in fact have a claim to custody, pointing out that the Nevada Parentage Act “does not preclude a child from having two legal mothers.” Siding with the same-sex couple, the justices of the Supreme Court remanded the case back to the district court for further proceedings.

By looking at this case from another state, same-sex couples here in New York can see how complicated child custody battles can get in other states. This is especially true in states where gay marriage is not recognized because state laws often offer no help to same-sex parents when determining child support and custody issues.

Source: The Republic, “High court: Surrogate mom in same-sex relationship can seek child custody after breakup,” Sandra Chereb, Oct. 3, 2013