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Custody rights for non-biological parents in same-sex divorce

On Behalf of | Jun 14, 2017 | Same-Sex Couples & Divorce |

Ever since the Supreme Court ruling in 2015 in the case of Obergefell v. Hodges, same sex marriages have been legal in all 50 states. Of course, same sex marriages had been legal in the state of California for longer than that. Despite repeated attempts to ban same-sex marriages in California, the state upheld the rights of gay, lesbian, bisexual and transgender people to commit to one another in a legal sense.

Just because California was ahead of the curve when it comes to same-sex marriage doesn’t mean there aren’t still legal complications. Divorces with same-sex couples, in particular, can present issues.

One of the biggest issues same-sex couples face during divorce is child custody. Asset division may also become complicated, especially if the couple was living as if married before the union was legally recognized. Many times, however, asset division and allegation of infidelity and abuse get handled the same way they are for opposite-sex marriage. Custody is more complex. Excluding marriages with transgender couples who were assigned opposite sexes at birth, children born into same-sex unions are typically related to only one of the parents biologically. This can make custody issues complicated.

Courts often support both parents in a same-sex divorce

In cases with adopted children who have no biological connection to either parent, custody and support issues are more straightforward. Just like with opposite-sex couples, both adoptive parents have a right to visitation and an obligation to provide for the children. Custody and child support get determined based on income and the needs of the children, along with other factors like abuse. Cases where only one parent has legally adopted or is biologically related may be vastly different.

In many states, including California, there have been positive legal precedents set in cases where a non-biological parent from a same-sex marriage has been able to share custody, obtain sole custody or receive visitation as well as support obligations during a divorce. There are still many cases where the non-biological parent is denied a relationship with the child from the marriage.

However, some judges and other members of the family court system may still be biased against same-sex marriages and parents. If both you and your partner wanted the children and cared for them as your own, you should receive visitation or shared custody. A relationship with your child is a basic human right for you both.

An attorney can help you fight for custody

If you worry about your parental rights because you are considering a divorce, you need the help of a lawyer. An experienced California divorce and family law attorney can help you advocate to the courts for fair treatment and access to your children. Divorce can be a difficult, complicated process. You shouldn’t have to go through it alone. Working with the right lawyer can help ensure a fair outcome for everyone when it comes to custody issues.


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