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The United States is engaged in a national debate over whether to grant same-sex couples the rights and privileges of marriage. Supporters of marriage equality flood the media with images of jubilant same-sex couples simply wanting the chance to say their “I dos” and have the state formally recognize their shared love and commitment. The unfortunate reality is, however, that many homosexual relationships, like heterosexual relationships, dissolve. Marriage rights play as important a role at a relationship’s dissolution as they do at a relationship’s inception. This paper focuses on one such issue often left out of the public discourse over marriage equality: determining parentage for the purposes of child custody/visitation as well as child support in the context of a lesbian relationship that has broken down.

Looking at two recent cases from the New York Court of Appeals, Debra H. and H.M. together, one can clearly see an alarming development: eliminating the applicability of equitable principles to provide legal parental status for a non-biological, non-adoptive parent to contest custody/visitation, while at the same time relying on such principles to force child support payments on the same individuals. Child visitation jurisprudence and child support jurisprudence should stand in parity, making it so an individual would simply be adjudicated a parent, not a parent solely for contesting child custody/visitation or a parent solely for child support. Otherwise, not only is the best interest of the child lost, but so too is the principle of fundamental fairness on the part of the defendant partner. In addition to drawing attention to this alarming jurisprudential development, I also set for alternate, substantive solutions.

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Domestic relations