Child Custody Rights After a Same-Sex Marriage Ends

Custody Rights Typically Extend to Divorced Same-Sex Parents

The case of Obergefell v. Hodges had the practical effect of determining that same-sex marriages are legal throughout the United States. Therefore, if you were married to a partner of the same sex, you would have the same rights as if you were in a heterosexual marriage. This means that you may be allowed to have visitation or custody rights to a child after a divorce.

Was the Child Born During the Marriage?

In the event that your child was born during the marriage, you are likely the child’s legal parent by default. In a heterosexual marriage, the mother’s husband is named the father even if the child isn’t biologically his. The same concept generally applies when both parties in a marriage are the same sex.

What If the Child Was Born Before the Marriage?

If a child was born before the marriage became official, the birth mother would likely be the child’s only legal parent. In the event that you are a man married to another man, the person who adopted the child would typically be its only legal parent. However, you could move to adopt the child before or after the marriage becomes official. Of course, anyone else who has parental rights to the minor would likely have to waive them or have them terminated by a judge before an adoption could occur.

Custody Orders Are Based on Preserving the Child’s Best Interest

It is important to know that the child’s best interest is the top priority when going through the custody process. Therefore, simply being the child’s legal parent may not be enough to obtain legal or physical custody. For instance, if you live in another state, it may not make sense to have physical custody of a son or daughter. Instead, you may be granted the right to contact the minor or have visitation during school breaks.

You May Need to Make Changes to Your Lifestyle

There is little to no evidence that exposing a child to a same-sex lifestyle will stunt their emotional development. However, courts typically frown upon those who expose their children to multiple partners or otherwise take actions that could jeopardize a child’s safety and stability. These actions could include:

  • Excessive work schedule
  • Unstable childcare
  • Full social calendar while excluding child

This is typically true regardless of a person’s sexual orientation. A same-sex divorce lawyer may be able to help you devise a plan that will allow you to be around your child as much as possible.

Be Sure to Gather Evidence of Your Fitness to Parent

While a judge will listen to your written or oral testimony during a child custody case, it shouldn’t be the only evidence that you provide. It is a good idea to keep a phone log, visitation log and other records that show your ability and willingness to interact with your child.

Conversely, you can use a lack of contact as evidence that the other parent is not allowing you to have a relationship with your son or daughter. Other evidence that a child thrives in your care could include:

  • Testimony from coaches
  • Letters from teachers
  • Medical records from doctors

It is generally a good idea to have multiple copies of any logs or statements that you intend to use as evidence in court. This ensures that nothing is lost or misplaced by a judge or anyone else.

Always Be Polite to the Judge and Your Former Partner

During the child custody process, everything that you say or do will be scrutinized by the judge and the child’s other parent. Therefore, it is important to be civil, polite and gracious at all times. If you don’t have something positive to say about your former spouse, it is better to not say it at all. Your same-sex divorce lawyer may provide more insight into what you can and can’t post to social media or share with friends while the case unfolds.

If you’re looking for help asserting your rights during or after a divorce, contact the Law Office of Kelly Berton Rocco today. You can do so by calling our Hackensack office at 201-343-0078. You can also send a fax to 201-343-0089 or an email to

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