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We are a same sex couple in California. We are expecting…

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We are a same sex...
We are a same sex couple in California. We are expecting twins to be born soon but I am the only biological father and the only legal parent. Is there a way for me to establish a guardianship for my partner so that he has the legal right to care for them when I am out of country or cannot be reached? Will he be able to apply for the paternity leave if he's the legal guardian? If he wants to apply for paid family leave, does he qualify if he's not yet legal guardian? thank you
Submitted: 11 months ago.Category: Family Law
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9/12/2017
Family Lawyer: Legal Eagle, Lawyer replied 11 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Family Law
Satisfied Customers: 14,184
Experience: Licensed to practice before state and federal court
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating so all that means is that you can count on me to help today. What will be important for you to do once the baby is born is to have your partner get legal guardianship over the child once the child is born. The court is going to want consent from both you and the biological mother as well and after a quick hearing or two regarding the matter, the court will grant your partner guardianship over the child. This means that he will have the authority to make decisions just like any other parent permanently. Once he is established as a guardian, he can then apply for paternity leave or paid family leave. If he's not yet the legal guardian, the law doesn't yet allow for that to happen automatically; he'll have to request through his employer to spend time with the child. This would be the same if he were heterosexual and his girlfriend had a baby from another man.

Also, although I provided an initial answer, it’s important that you are 100% satisfied. If you feel I have done so, please rate me 5 stars and let me know if you have any follow up questions. As a side note, you can also click here in the future to request me individually.

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Customer reply replied 11 months ago
Thank you for the prompt response. This is done through gestational surrogacy so I am the only legal parent for the children. Does that mean I can go ahead and file the guardianship without the egg donor?Is my partner eligible to file for the paid family leave?As for his work, they said they understand the situation and they just need a birth certificate and an unofficial statement to grant his leave but we don't know what exactly that means and can he still use the Loco parentis to get the leave when he's still not a legal guardian? thank you
Family Lawyer: Legal Eagle, Lawyer replied 11 months ago

Good questions:

1. No. because the woman is the natural parent, even if she is the donor, the law will provide her rights automatically. You'll have to include her in the guardianship paperwork.

2. Your partner is eligible only when the child becomes his legally through guardianship or adoption. Otherwise, PFL will not apply.

3. If his employer is willing to work with him under these circumstances, then you should run with that. Just know that until the court puts in an order, he doesn't have that entitlement.

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