When parents divorce, one of the most difficult parts of that process can be determining who will get custody of the children. Determining custody isn’t as easy when parents are same-sex couples and live in states where gay marriage isn’t allowed, because the courts are unsure if they have jurisdiction to make such an important decision.
Many same-sex couples decide to have children through adoption or surrogacy, but what happens if the relationship ends? In most states, even if both partners are listed on the birth certificate, only one partner may be granted parental rights over the child. In this guide, you’ll learn more about how custody battles work for same-sex couples, and what happens when parents disagree on whether to raise their children together or apart from each other after a divorce has been finalized.
Difference between Opposite Sex Divorce
Same-sex divorce is no different from opposite-sex divorce when it comes to child custody. The courts make decisions based on what’s in a child’s best interest, with each parent filing an affidavit of disclosure listing out their reasons for wanting custody and why they believe they are more suited for raising a child. Courts generally grant joint legal custody but grant one parent primary physical custody. In some cases, particularly if there is domestic violence between two parents, courts may grant sole legal and physical custody to just one party over another.
Legal custody is a legal term that describes a person’s authority over and responsibility for a child. The legal custody of a child means that an individual has been granted by law certain rights, responsibilities, and obligations relating to their care, protection, supervision, and well-being.
Before same-sex marriage was legal in all fifty states, child custody and divorce proceedings were confusing for those with homosexual orientations. The laws of many states defined marriage as a relationship between a man and a woman, requiring non-marital partners—including same-sex couples— to navigate a complex system of asset division during divorce that did not recognize their partnerships.
Allocation of Parental Responsibilities
Legal experts agree that when a same-sex couple breaks up, no matter where they live, courts must adhere to what’s called the best interests of the child standard. That means custody decisions are made on a case-by-case basis. In states with statutes providing shared parenting, courts can consider both parents in making decisions.
However, if only one parent has legal ties to their children (i.e., is listed as a parent on their birth certificate), it makes little sense for another parent who has not legally adopted them or created another legal relationship to make visitation and partaking responsibilities a part of their divorce decree. This holds regardless of sexual orientation and family structure.
Parenting Time
A very important consideration for same-sex parents is parenting time. Parenting time dictates with whom your child lives and spends their day. With a wide range of custody options, including joint legal and physical, joint legal and sole physical, or sole legal and sole physical, there are many decisions for same-sex parents to consider. In addition, parenting time involves not only decisions between parents, but also extended family members who may seek greater involvement in raising a child.
Shared Custody Agreements
This custody order ensures that both parents will spend time with their children. It could be that one parent is given physical custody, meaning they live in a particular home with the child, while another has legal custody, which enables them to make decisions about things like education and religion for their child. Alternatively, joint custody can involve a transfer of legal or physical custody back and forth between both parents.
Common Misconceptions
A parent’s sexual orientation is not a factor in determining custody arrangements, and courts do not favor one parent over another simply because of their sexual orientation. However, if there are issues regarding your relationship with your children and that relationship is strained, it may be wise to seek a reliable divorce attorney to protect your rights as a gay or lesbian parent. Your attorney should also be able to help you resolve any LGBT child custody issues without resorting to trial. No matter what your situation, an experienced lawyer will know how to proceed from here.
An often overlooked issue with an LGBT case dealing with children involved is that state laws may differ depending on where you reside. For example, laws about adoption vary significantly by the state when it comes to same-sex couples due to varying interpretations of federal law versus state statutes. Just like with child custody issues involving straight parents, a lawyer who specializes in LGBT divorce will be able to navigate these complex legal waters and make sure your parental rights are protected as much as possible.
If your state law permits same-sex couples to adopt, then you will be able to apply for joint custody of a child. However, in many states, if you have a foreign adoption decree or an unmarried parent having conceived through artificial means such as surrogacy or sperm donation, there may be legal issues that need resolving before you can file for custody. You may also find it helpful to consult with an attorney regarding your circumstances and the best course of action.
