Surrogacy & Child Custody Rights in California

There are few divorce cases which are pretty straightforward and the terms and conditions of the divorce are quite easy to understand. However, there are some divorces which are as complicated as they can get. One such issue arises when the child involved in the divorce has been born from a surrogate mother. Surrogacy is a common procedure and many couple prefer surrogacy over artificial insemination or invitro fertilization methods. There are clear guidelines for surrogate mothers and they are expected to sign a legal document. Also, biological parents can become legal guardians only through surrogate mothers.

Now, if a divorce takes place when the child hasn’t born or legal guardianship hasn’t been transferred to the biological parents, what happens to the child? Does the custody battle still take place or does the surrogate mother become the legal guardian?

Surrogate mothers

Surrogate mothers can become the legal guardian if they wish to during the parent’s divorce. Since California law requires them to sign legal documents, surrogate mothers are the legal parents till the child is born. In fact, till the time parental rights have been handled over to the biological parents, surrogate mothers can keep the child if they wish to. However, if the parental rights have been handed and the divorce takes place, then custody issues will be dealt in the usual way.

Biological parents

While it may seem that surrogate mothers have the upper hand during a divorce, it is not entirely true. Biological parents who want the child to stay with them should be aware of the legal rights in California. In California, intended parents can become legal guardians before the birth of the child. That includes same-sex couples as well. For biological parents who want the child to be with them should wait until the child is born. That way, at least the fear of the surrogate mother becoming the legal guardian won’t be there.

Conclusion

Surrogacy laws differs from state to state and California has its own set of surrogacy laws. It allows parents to establish parental rights before the child is born. However, in some cases a surrogate mother can also become the legal parent if she wants too. It is therefore important to consult a divorce lawyer first before signing any legal documents. An experienced lawyer can help decide who has the upper hand during a divorce – a surrogate or a biological parent.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Gerald A. Maggio is an experienced Orange County divorce lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.