Abstract
Generally speaking, to seek custody of a child, a person must be a legal or biological parent to the child at issue. It is not unusual, in many jurisdictions in the United States, when same-sex couples are raising children together, for one parent to be considered a legal stranger to the child because he or she is neither biologically related to the child, nor has he or she legally adopted the child. In those jurisdictions, that parent has no standing to seek custody or visitation of a child born into the relationship, even if that parent was the primary caregiver during the relationship. The only way that parent can successfully seek custody or visitation rights is to try and prove he or she is a de facto parent or a psychological parent to the child in states that recognize those legal theories. Those arguments require a court to consider substantive legal theories to not only determine whether the nonbiological/nonlegal parent should have custody or visitation rights, but also whether that parent has standing to seek custody or visitation rights at all. The process is conflated, forcing the court to decide the substantive legal issue of parentage in order to decide whether the nonlegal parent has the threshold requirement of standing. This creates several problems for courts and gay or lesbian parents who are barred from seeking custody of, or visitation with, their children after the dissolution of their romantic relationship.