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Child custody issues in divorces of same-sex couples

Child custody issues in divorces of same-sex couples

In theory, marriage equality means the same standards ought to apply to all types of couples in the event of a divorce. However, because laws regarding child custody and visitation rights vary across the United States and continue to change as they pertain to LGBTQ parents, firms such as ours highly advise clients coming from same-sex divorce to do everything in their power to avoid a custody battle in court by reaching a compromise outside of it.

Prioritize the needs of your children, never use them as a weapon to hurt your ex-spouse, and approach a therapist or a custody mediator to help you arrive at an amicable agreement. As a firm that specializes in divorce, we have never seen a child — be they from opposite-sex or same-sex parents — leave a custody battle emotionally unscathed. You will only traumatize them and bring immense grief upon yourselves.

Save yourselves and your children from distress by discussing custody issues amongst yourselves and reaching agreements regarding the following:

  • Legal custody – Who gets to make decisions about the best interests of the kids, such as picking who their pediatrician will be, or which school they will go to?
  • Physical custody – Who will the children live with? If there’s more than one child, will the kids be separated from one another?
  • Visitation – When, how often, and under what conditions can the noncustodial parent spend time with the child or children they don’t have custody of?
  • Child support – How much should the noncustodial parent’s share be in paying for the costs of child-rearing?

However, if you can’t resolve your disputes outside of the courtroom, turn to Buckingham, LaGrandeur & Williams. We’ll help you navigate the choppy and sometimes yet-uncharted waters of custody determination. To help you figure out how much custody you can obtain, here are a few basic rules you need to be familiar with.

Rule for when you and your ex-spouse are both legal parents

By being legal parents, you both have equal custody rights and will be treated the same as opposite-sex divorcees. To be clear, spouses may be both considered as legal parents of a child if:

  • That child was born into a legal union (such as marriage, registered domestic partnership, or civil union) in a state where such a union gives the nonbiological parent parental rights.
  • You and your ex-spouse jointly adopted the child.
  • The nonbiological or nonadoptive parent established a parent-child relationship through a parentage action (i.e., a legal proceeding that officially establishes an adult to be the legal parent of a child).
  • The nonbiological or nonadoptive parent adopted the child via a stepparent or second-parent adoption (i.e., the legal procedure that lets a same-sex parent adopt their partner’s biological or adoptive child without ending the legal rights of the first parent).

By going to court, a judge will look into your circumstances and act as arbiter for the best interests of the child.

Rules for when only you or your ex-spouse is the sole legal parent

Here’s where it can get pretty hairy, as laws regarding child custody vary wildly across states. Many states do not recognize or grant parental rights to second parents, meaning the latter cannot seek physical or legal custody, or even visitation rights at least. While such parents are not legally obligated to provide child support, it is not uncommon to find them willing to share in the financial responsibility.

If you are the legal parent

Whether or not you or your ex-partner is a legal parent shouldn’t matter as much as the primary criterion for child custody: the needs of the child. If you are the legal parent and your child has a wonderful relationship with your ex, do not sabotage that relationship just because the marriage didn’t work out.

However, if you’re the legal parent and you sincerely fear for your child’s physical and emotional safety when he or she is around your ex-spouse, then you have the legal right to prevent visitations.

Seriously look into whether or not your child sees your ex as a parent, and how losing that person would make your child feel. Also look back on the agreements you have made about parenting back when you were still married, and the time you spent raising the child together. Children are reliant on adults for their well-being, so always put their needs first before your own.

If you are the second parent and you’re being denied visitation rights by your ex

Helping raise a kid creates a parental bond that often proves to be harder to break than marital bonds. If you truly believe that a continued relationship with the young one will be beneficial to them, then consider the following:

  • Does your state provide avenues for second parents to claim partial custody or visitation privileges? If yes, what steps must you take to override your ex’s denials?
  • If the answer to the question above is no, would you be willing to present your situation as a test case for the creation of new laws? Note that this course of action will expose you to the scrutiny of judges, lawyers, lawmakers, and the general public, so do gird your loins before going in.
  • If current laws are denying you the parental rights you believe you ought to have, then think about changing such laws by making your case reach the appellate court level. Otherwise, your only recourse is to talk personally with your former spouse. If your ex is especially resistant to you, have a mediator help smoothen discussions and keep the focus on the well-being of the child.

As much as we at Buckingham, LaGrandeur & Williams advise clients to avoid bringing child custody cases to court, we’ll nevertheless provide the best legal services in case you decide to do so. Our track record shows that we have the expertise and empathy required to help you achieve a parental agreement that’s best for your child.

Disclaimer: This article is a broad view of custody in the United States, and may not translate directly into how things are viewed in Washington.