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Deciding on child custody in a same-sex divorce in California

On Behalf of | Mar 17, 2023 | Child Custody |

Same-sex couples in California have the same rights to marry as heterosexual couples. The same rules also apply to both heterosexual and same-sex couples except if the couple has children. While the rules that govern custody disputes in same-sex divorces are essentially identical to those rules in heterosexual divorces, the fact that the child of a same-sex couple cannot be the biological child of both parents raises unique challenges if a same-sex couple decides to end their marriage.

Custody issues unique to same-sex unions

As noted, one parent in a same-sex union is usually not biologically related to the child. Many parents in same-sex unions or marriages elect to adopt a child, which can be helpful in a struggle over custody. However, in many same-sex unions, both parents overlook the usefulness of certain formal procedures that can affect the determination of custody if the relationship ends.

The problems posed by biology can in part be solved by artificial insemination. If two males are married to each other, the sperm of one of them can be implanted in the womb of a surrogate mother. At birth, the surrogate mother usually agrees to give up her parental rights in the newborn infant. If the marriage or union comprises two women, one of the women can accept the sperm of a volunteer male and carry the child to term. The surrogate father is usually expected to give up his rights to be recognized as the parent of the child.

In same-sex unions, the non-biological parent has the right to adopt the child, thus obtaining legal custody. If the members of a same-sex union both file motions to be recognized as the parent of the child, both will have legal custody in the absence of a court decision holding otherwise. If both parents have legal custody of their children, the issues of child custody will be decided in the same manner as in a heterosexual divorce.

What does the non-biological parent do about parental rights?

If only one parent has parental rights, either because of a legal adoption or because the parent was biologically involved in the pregnancy, that parent will have custodial rights to the child. The other member of the couple may need to legally adopt the child in order to exercise custodial rights to the child.

Conversely, same sex parents have the same right to receive or the obligation to pay child support as heterosexual parents. Thus, the courts use the same child support guidelines for the children of same-sex parents as they do for heterosexual couples.

The best interests of the child

The general rule that governs child custody and child support obligations in California also applies to same-sex couples: the court’s decision must rest upon the judge’s finding about what outcome will be in the best interests of the child. However, the state legislature has decided that four factors must be ignored when deciding on the best interests of the child: sexual orientation, sex, gender expression and gender identity.

Using a custody agreement

Perhaps the most effective method of resolving child custody disputes in a same-sex divorce is a custody agreement. Anyone interested in this alternative may wish to consult a family lawyer with experience in advising same-sex couples.


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