When a same-sex couple with children decides to terminate their relationship, it can be challenging to deal with the resulting issues of custody and child support. The state regulations apply to same-sex couples, and their families are changing, making it harder to predict a certain outcome.
Since same-sex marriage and family relationships continue to evolve fairly quickly, it is crucial to consult with a local family law attorney.
After Obergefell v. Hodges, all states are mandated to recognize a same-sex couple’s right to marry. If a same-sex couple has decided to marry and has children after marriage, the state courts will view each parent as having visitation and custody rights for any children born during the marriage.
When divorcing couples cannot agree about custody, visitation, and child support, judges will review both parties’ arguments and evidence to develop an order that supports a suitable custody, visitation, and support arrangement for the family.
Most state courts advocate for the best interests of a child when determining these arrangements and acknowledge that children generally benefit from a relationship with both parents. In most cases, parents not being granted physical custody of a child must pay child support to a parent with custody. Issues of domestic violence or abuse can affect the outcome of child custody and support proceedings.
However, the situation can get more complicated if one parent has a biological relationship with the child and the other parent marries the biological parent after the child is born. In that case, the non-biological parent must have taken steps to adopt the child or obtain a parentage judgment to obtain custody or visitation rights. A court is unlikely to order a non-biological parent who has not adopted the child or obtained a parentage judgment to pay child rights support.
Issues of child custody and support for unmarried same-sex couples are not affected by the ruling in Obergefell v. Hodges. When a relationship between unmarried couples ends, custody and child support order results will vary by the legal parental status of the involved parties.
Most courts will rule that a second parent has no legal rights to raise or make important decisions about a child if they have not adopted a child or obtained a parentage judgment. In some cases, the court may restrict the second parent from standing to sue for visitation or custody, regarding the second parent as a “third party.”
Other courts may allow a second parent to have visitation if that parent has played an essential role in raising the child. However, a second parent that has adopted a child or obtained a parentage judgment is comparable to a biological parent and can be given custody rights and support rights, depending on the child’s best interests and other factors.
These include the following actions, a show of the parents’ intent to co-parent, the length of the relationship between the same-sex couple, and a parenting agreement where one exists.
Unmarried same-sex couples may be able to protect themselves and their children by hiring an attorney to draft a parenting agreement. This agreement specifies that even though only one of the partners might be the legal parent of the child or children, both partners consider themselves the parents. In the agreement, the parents should signify their rights and responsibilities and include a statement of intent to continue co-parenting even after a relationship ends.
It can also be useful for the agreement to address financial issues, such as child support and the costs of raising a child. A legal parent should express intention to allow the second parent visitation rights if the relationship terminates. Even with a written parenting agreement, there is no guarantee of a particular custody result. Custody cases between same-sex spouses in a divorce process are challenging in the best of times unless the couple uses an alternate divorce resolution or an Alternate Dispute Resolution (ADR).
Typically, it is advised to resolve this without the courts deciding because the spouses may notice that the judge is siding with the biological parent only with little or no visitation for the other parent.
Many states will only provide the birth father or mother with primary or sole custody of the child for same-sex marriage, divorce, or separation. This usually reduces the rights of both parents to a single instance of who is the person that assisted during the youth life rather than one who also helped raise and nurture the young person throughout their life. In certain circumstances, the other parent has few legal rights or any way to acquire custody or visitation in the state when there are few rights available to the same-sex couple.
When the state reviews a same-sex divorce case, the judge may consider who has legal custody as the birth parent, with the possibility that the other may receive some visitation rights. However, if the youth is someone the couple adopted or both parents have legal rights to the child, this can create more issues.
For instance, the judge and court may consider this similar to the opposite-sex divorce case and award both parents the ability to be granted custody and visitation. Later, it is crucial to consider the evidence and argument of both parents regarding who will primarily raise the youth for the remainder of their development years.
Keep in mind that many states may not function properly with same-sex couples getting divorced. When the matter of child custody arises, the judge may not consider only the birth parent as a consideration for custody. However, in more extreme cases, the judge may consider removing the child from the same-sex spouses and placing the youth with the birth mother or father who is not in a same-sex relationship.
Other complications may arise if there is any matter of child support from the other spouse or a parenting plan that involves both parents. The problems arise when the spouses disagree or want to attack the other by going through the courts in this manner.
Moreover, there are several alternatives to the standard court case for divorce and child custody in a same-sex marriage. These usually depend on an agreement between spouses before entering into the divorce process.
However, mediation and even arbitration are open and available as legal options rather than dealing with a judge that may not understand a same-sex marriage. Any of these paths are valid and can support both spouses when deciding how to handle custody and child support.
When consulting a lawyer, it is important to consider all options and how an ADR is typically better than facing a judge. It is important to research the same-sex marriage regulations in your state and locate a local child custody lawyer in your area to assist you with your scenario.
Your attorney can provide you with the legal advice and representation needed for your particular case.
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