Same sex partners face a daunting decision when they choose to have a natural child instead of adopting. Clearly, both cannot have the child together. One has to be the biological parent and the other will not be. Of course, the other party can adopt the child which thus helps to solidify that parent’s rights. However, not every couple has that kind of foresight. Some couples may skip that procedural or just put if off thinking that it is not necessary because they won’t be breaking up. Of course, no one goes into a relationship thinking it will break up but most of them do. Thus, if the parties cannot agree as to what happens with the child when they break up, a lengthy court battle will ensue.
Luckily, the non-biological parent in a same sex partnership does have an ability to gain legal rights to the child. That party can file a complaint with the court to be recognized as a psychological parent. The complexity of the case will often turn on the age of the child. Clearly, an older child will view both parties as the parent. However, a very young child may not have that ability at all. A toddler may present a very difficult call. Either way, the best way to handle this is to hire a lawyer as soon as possible to discuss all of your options.
Please note that a same sex partner can also advance the argument that since they consented to the artificial insemination of their partner, they are presumed to be the natural parent. See In re Parentage of Robinson, 383 N.J. Super 165 (Ch. Div. 2005).