Who Gets Custody in a Same-Sex Divorce?

Solving Custody Disputes in a Same-Sex Divorce

With almost half of all LGBTQ adults raising children, it is no surprise that child custody is a hot topic. Many people wonder what will happen to their children if they decide to divorce their spouses. Child custody in same-sex divorce can be a bit complicated, but there is a decent chance that all parental figures receive some custody or parenting time rights.

How Does the Court Decide Custody for Same-Sex Divorces?

To understand how custody in same-sex divorce works, it is important to understand how custody arrangements happen. In any divorce, both partners have the option of coming up with a custody arrangement themselves. They can choose to divide custody and child support in any way they wish. As long as the needs of the child are being met, the court will not interfere with the plan. When the two spouses cannot agree, the court will be forced to step in. Each couple and their divorce attorney will submit their case to the judge, and then the court will determine who gets custody. When deciding custody, the court focuses solely on the best interests of the child. It is not about what is fair for the parents or who made mistakes in the relationship. Instead, the court will just consider the child’s needs and look at the child’s relationship with each parent.

When all parties are responsible, loving parents, the court typically decides it is in the child’s best interest to have equal time with both parents. However, if this is not the best option, there are several different ways that custody may be divided among same-sex partners. Unless one of the parents is abusive, both parents usually share legal custody. Joint legal custody allows both parties to make decisions on their child’s behalf for important things like education and medical care. Physical custody, which refers to who the child spends time with, is split in more ways. Common options include one parent having sole physical custody or one parent having custody 75% of the time. Often, custody arrangements include specifics like which holidays are spent with which parent. If a parent does not have physical custody, he or she may still have the right to visit the child in either supervised or unsupervised visits.

Establishing Parental Rights Makes a Big Difference

Ultimately, custody disputes in a same-sex marriage are fairly similar to those in a heterosexual marriage. The big difference is simply that establishing who qualifies for custody might be more complicated. In heterosexual marriages, parental rights are automatically granted to both partners in the relationship. In same-sex marriages, parental rights may only automatically be granted to the biological parent of the child, especially if the child was born outside of the marriage or in another state.

New Jersey acknowledges automatic parental rights for the woman who carried the embryo to term or the man who donated the sperm. The only times the gestational carrier or sperm donor is not the legal parent is when a surrogacy or genetic donation contract was set up before the pregnancy. Furthermore, if a woman gives birth while in any type of marriage, the non-birth parent has parental rights regardless of biological connection.

Essentially, this all means that there are several ways for homosexual partners to establish same-sex parental rights at birth. If a woman is the gestational carrier for an embryo made with her wife’s egg and donor sperm, both women could be legal parents. When one married woman gives birth to a child, her wife is also the legal mother. A common scenario where a man and his husband could be legal parents is if a surrogate carries an embryo made with the man’s sperm and a donor egg. Remember that the existence of a prior contract will matter a great deal when determining whether the donor of the egg material, the donor of the sperm, and the carrier of the pregnancy have parental rights.

In addition to these scenarios, it is also possible to establish parental rights through adoption. Second-parent adoption allows one parent to gain rights without taking away the other parent’s rights. Some parents in a same-sex relationship may choose to adopt a non-biological child formally, instead of relying on automatic parental rights. This can just make it a little easier to ensure the parent has rights in other states with different laws. Adoption is also helpful for blended families or same-sex families where the child was born before the parents were married.

Can a Non-Legal Parent Still Get Custody?

In same-sex divorces, the simplest custodial disputes are ones where both ex-partners were legal parents. Custody is distributed the same way it would be for a heterosexual divorce. However, when one person in a same-sex marriage does not have legal parental rights, there are some special considerations to take into account. In these cases, it is possible for a non-legal guardian who is not biologically related to the child to get custody.

This happens due to a legal concept called the psychological parenting doctrine. This doctrine focuses on the best interests of the child, ensuring they retain a relationship with a person who fulfilled a parental role. The court may consider someone to be a psychological parent of a child if they meet these requirements:

  • They lived in the same household with the child.
  • The child’s legal parent consented to the other person forming a parental relationship with their child.
  • The person took on responsibility for the child’s development, care, education, and financial support.
  • This relationship lasted long enough for the child to develop a bonded, dependent relationship with the person.

During a same-sex divorce, a partner who does not have established parental rights can use this doctrine to try to seek custody. For example, consider a single mother who met and married another woman. If the second woman fulfilled a parental role for her wife’s child for years, the psychological parent doctrine can allow her to seek some custody in a divorce. This legal concept can even apply to situations with more than two parents. In a recent case with two male partners and one female partner, the non-biological male partner was still awarded partial custody during a dispute.

The psychological parent doctrine does make it possible for non-legal parents to still get custody. However, you need to keep in mind that it is not awarded to you automatically. You need to be prepared to fight for it. You and your divorce attorney may need to gather proof of financial contributions, seek interviews with child psychologists, and gather other documentation to back up your claims in court.

Whether you are heterosexual or homosexual, child custody is never a simple dispute to handle. Child custody typically involves making big decisions and addressing a lot of major emotions. To get the best possible outcome for you and your family, you may need help navigating all the legal complexities of custody arrangements. At the Law Office of Kelly Berton Rocco, we provide sensitive and knowledgeable representation. Our team has plenty of experience handling same-sex divorce and custody arrangements. When you need a Hackensack divorce attorney, call (201) 343-0078 or email us to learn more.

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