Child Custody in Same Sex Divorces - How Is Custody Determined?

When a same-sex couple decides to call it quits and end the relationship, it is important to understand how the child custody arrangement will affect both parents in the state where they all live. Depending on how the judge considers the matter, the separation with custody and visitation could negatively affect the non-biological parent.

The Difficult Challenge

The laws of the states are often unfair to the same-sex couple when the two decide to end the relationship through the divorce. Additionally, legal rules throughout the country are constantly in shift. There are new cases necessary to challenge the current regulations in various states to provide for the nonbiological parent when he or she is truly and significantly involved in the life of the child from the relationship. These challenges hamper the ease of supporting custody for both parents and visitation for the parent that has no biological connection to the youth. Other challenges arise when neither parent is the birth father or mother.

Reaching a Compromise

The judge involved in the standard divorce case is not always someone that understands the process between same-sex relationships with children. He or she may not compromise with the two parties. It is vital that both reach some form of compromise before seeking a legal split. Additional compromises are possible through mediation or an alternative legal proceeding to dissolve the relationship. These processes can support both spouses and help the child see the parents equally or however the two decide to compromise the custody arrangements. Through legal support with a lawyer, the spouses may understand how to conclude these affairs.

The Custody Battle

When the same-sex couple proceeds through the court to determine the child custody matter, both parties may face a rude awakening in how the local courts perceive same-sex parenting. Others will fully understand how ugly the divorce case can become either through conflict or the legal processes that challenge both spouses to conclude the matter. The child custody, visitation, child support and a parenting plan are all items that will require some form of resolution. It is vital that the couple attempt to deal with these matters outside of the courts to reduce time, stress and the complicated processes.

Both Legal Parents

When both spouses are the legal parents, they usually have the child during the marriage, have a birth parent and an adoption or both adopt the youth. In some of these situations, the judge will provide primary or sole custody to the parent with the biological connection and visitation to the other. When the young person is not a biological child of either, it is possible to seek joint custody. Without a compromise or an agreement before the courts’ processes, the non-birth parent may face difficulties in acquiring custody. It is important to have a lawyer to help and to find some form of solution to these problems before the judge
decides the end.

Jointly Adopted Children

When both parents have legal rights because of adoption, this could lead to a child custody decision based on the needs of the youth and the parent that provides the most support to the youth. The judge may need to consider all factors and proceed as with an opposite-sex couple dissolving the relationship. The courts will determine who gets primary custody through the best interests of the child. This may lead to an interview with the judge and the young person. The best interests may require that both parents have joint custody or arrange a parenting plan that includes both spouses with equal time with the youth.

Only One Legal Parent

More complications arise when only one of the parents is legally the parental person by the laws of the state of residence. In these situations, most states view the other spouse as having no rights per the courts. Then, the legal parent will receive sole custody with no visitation by the courts. If the legal parent wants to keep this arrangement, he or she can accomplish this with very little or no recourse with the other party. There is often no financial obligation for the nonlegal parent.

The Lawyer in a Child Custody Case with a Same-Sex Divorce

The lawyer working for the client in a same-sex case will need to determine which rights apply and who has more legal power in the battle. If a compromise or another arrangement is not possible, the client may seek sole custody with little or no visitation for the other parent.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.
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