A federal lawsuit by four same-sex couples who were legally married in other states is asserting that Louisiana’s state constitutional ban on recognizing such marriages violates their federal constitutional rights. One important motivation and issue in the case for at least two of the couples involves child custody. Each of the couples has a daughter, 10 months old and 2 and a half years old respectively. Under Louisiana state law, only one member of each couple is recognized as the legal parent of each child. This is the case whether the child was born to the couples during the marriage or adopted.
As a result, should the person legally recognized as the parent die or become totally incapacitated while the couple and their child are living in Louisiana, the other spouse would have no parental rights, and the question of who would raise the child could be up in the air, perhaps resulting in the child being handed over to a foster parent or some other relative or stranger.
Even short of that, the alive or competent spouse might have legal difficulties being accorded standing to deal with the child’s medical or educational issues, such as consent to treatment or involvement in teacher-parent conferences, consent forms for sports team participation or field trips, etc. A growing number of same-sex gay or lesbian couples in Louisiana are in this situation, having been legally married in one of the 17 states that allow such marriages or in the District of Columbia. Similar lawsuits have been filed in a number of other states, with some judges striking down state law prohibitions on recognizing same-sex marriages from other states.
Another issue in the case is that Louisiana’s tax department requires legally married same sex couples to file separate state income tax returns, listing themselves as single. This is currently required under state law despite the fact that the IRS is allowing same-sex married couples to file joint tax returns even if they live in a state that does not recognize their marriage. Only one of the two spouses is then able to claim the child as a dependent on their Louisiana tax return.
Source: The Plain Dealer, “Married gay couples challenging Louisiana’s refusal to recognize same-sex marriage” No author given, Feb. 12, 2014