Same-sex divorces and custody rights

| Jun 29, 2018 | Same-Sex Couples & Divorce

The newest battleground for gay rights is being fought over the children of same-sex marriages.

When same-sex parents divorce on bad terms, children can get caught in the middle. Since the children of same-sex marriages are only biologically related to one half of the couple (at most), custody that’s split strictly along biological lines can divide parents from children and tear siblings apart (if the children are biologically related to different parents).

Unfortunately, same-sex couples aren’t immune from the same sort of hostilities you see in heterosexual breakups. That lands some of them in court — one spouse fighting to claim custody or visitation and another seeking to deny those things.

What ultimately ends up happening in these cases varies considerably. Some states have interpreted existing case law regarding children born inside a marriage to apply to children born inside a same-sex marriage as well — the language of the law notwithstanding.

In other cases, the courts may look at a variety of factors when they determine whether or not a parent-child relationship exists. Some of the questions that the court may seek to address include:

  • Did both parents take responsibility for the child or children during the marriage? Is there evidence, for example, that both parents went to school functions, attended doctor’s visits and did other “parent-child” type activities.
  • Did the parent without the biological relationship present the child to his or her family, friends and others as his or her own? Does the child call that parent “mom,” “dad,” or something equivalent?
  • Was legal adoption available? If so, is there a reason that the parent without the biological relationship didn’t adopt the child?
  • What are the emotional and financial connections between the child and the parent without a biological connection? Has a significant emotional bond been established? Has the parent provided financially for the child over the years? Does he or she continue to do so?

The more strongly you can demonstrate your parental relationship with your child, the better your chances are of gaining some form of custody and visitation — even over your former spouse’s objections. That makes it important to document your relationship with your child from early on — just in case your marriage sours and you end up in a custody battle.

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