Same-Sex Couples: Child Custody Issues

The specific rules for child custody and visitation differ from state to state and continue to be in flux with regard to gay parents.

By , J.D.

If you are splitting up with a same-sex partner and you have children, you are likely to face some difficult challenges. The law -- both as it is written and as it is practiced -- can be very unfair to same-sex parents. Making matters even messier, the legal rules change constantly. Lesbian and gay parents are truly forging new territory -- which is fine when you are in the mood to be a revolutionary, but not necessarily so when all you want to do is spend the day with your child.

Because of all these pressures and uncertainties, it is vital that you do everything you can to reach a compromise on all child-related issues. Try to reach a resolution through talking together, in therapy, or with the help of a custody mediator – and remember that if you take your custody dispute to court, you're likely to be ordered to mediation anyway.

Whatever you do, try to avoid a parentage or custody battle in court. You will only harm your child in the process, as well as bring on mountains of agony for yourselves. If you can agree on the issues of legal custody (who makes decisions about the child), physical custody (where the child lives), visitation (how often and under what conditions the noncustodial parent spends time with the child), and child support (the noncustodial parent's contribution to the costs of raising the child), you will save yourselves -- and your kids -- a great deal of distress.

And if you can't reach a resolution yourselves? Then you will have to submit your disputes to the legal system. The specific rules for child custody and visitation differ from state to state and continue to be in flux with regard to gay parents.

This article provides a summary of the basic rules.

If Both of You Are Legal Parents

Both partners may be legal parents of the child for any of the following reasons:

  • The child was born into a marriage, registered domestic partnership, or civil union in a state where the relationship confers parental rights on a nonbiological parent.
  • The nonbiological or nonadoptive parent adopted the child through a second-parent or stepparent adoption, or established a parent-child relationship through a parentage action.
  • The two of you jointly adopted the child.

Where both parents have equal legal rights, child-related disputes should be handled just as they are for a straight divorce, where a judge will consider a variety of factors to determine the outcome that is in the best interests of the child. (To learn more about the general rules that apply to determining child custody, see "Child Custody."

If Only One of You Is the Legal Parent

If only one of you is the child's legal parent, things will be different. Generally speaking, it doesn't matter why the second parent isn't a legal parent (whether it's because you live in a state where there's no relationship recognition and second-parent adoption isn't available, or because the legal parent wouldn't agree). In many states, second parents have no rights whatsoever, and cannot seek either legal or physical custody. Often, there is no way to seek visitation either. These parents also rarely have any financial obligations to their partners' children, although in most contested situations the second parent would be glad to help out financially.

However, courts in some states have recognized second parents on the basis of their intent to conceive and raise children, or their established relationships with those children.

Here, more than any other area of same-sex family law, it's critically important that before making decisions or taking action relating to your kids, you get advice from a skilled and knowledgeable attorney who knows the law and is familiar with your local judges. Not only does the law change rapidly, but the outcome of any particular dispute can depend on which judge hears the case.

It's hard to find a consistent thread in the parentage cases, but there are some things that seem only right when you are facing a breakup that involves kids. For example, put your child's needs first! Whether you are the legal parent and believe that your ex-partner should not visit your child, or the second parent seeking to maintain a relationship, make your child's emotional needs -- not yours -- your highest priority.

If you are the sole legal parent, and you truly believe that visitation with your ex-partner would be harmful to your child, then you have the right to try to prevent it. But if the only reason your partner doesn't have parental rights is because the two of you couldn't get married, and you would have married if you could have, then it is wrong -- morally if not legally -- to deny your partner access to a child you have raised together. The fact that your ex might be a flawed person doesn't justify it. Conflicts in your relationship aren't grounds to cut off your ex's contact with your child, either.

If you are denying visitation because you are trying to avoid ongoing contact with an ex you can't stand anymore, think about whether your child considers your ex a parent, and about how your child will feel about a sudden break in the relationship with an important caretaker. Make an effort to acknowledge honestly what agreements you and your partner made about parenting and about sharing custody -- and try to do the right thing. It will benefit you, your ex, your entire community, and, most importantly, your child.

If you are a second parent and your partner is denying you visitation with the child you have helped raise, you will want to ask some questions:

  • Does your state allow you to present a claim for visitation or partial custody if you are not a legal parent? If so, what procedures must you follow?
  • If no procedures have been established in your state, are you willing to be a "test case" and try to forge new law? Doing so will expose your most personal characteristics -- positive and negative -- to the scrutiny of lawyers, judges, and the public. Make sure you are ready to take this on before you begin.
  • If the law is definitively against you, consider whether you want to try to change the law by pursuing your case up to the appellate court level. If not, you will have to explore more personal approaches, such as mediation or counseling with your former partner.

Whichever side of the custody dispute you're on, remember that you and your kids will greatly benefit if you seek help before you act.

For More Help

In addition to consulting a qualified family law attorney, the following resources can help you negotiate and create a succesful parenting agreement.

This article was excerpted from A Legal Guide for Lesbian & Gay Couples, by Frederick Hertz and Emily Doskow.

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