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Child Custody And Visitation Arising From Same-Sex Relationships

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What Effect Does a Parent's Sexual Orientation Have on Child Custody?

When it comes to the issue of child custody and visitation, same-sex couples face unique challenges. This is because the specific rules for child custody and visitation differ from state to state and many of these rules continue to change with regard to gay and lesbian parents.

Gay and lesbian couples may bring a child into their lives through conception and birth. For a lesbian couple, this typically involves finding a male donor or visiting a sperm bank and then having one of the partners become pregnant. The other parent in such a partnership can then become a legal second parent through stepparent or second parent adoption. However, such adoption rules are applied differently in different states.  Gay men can also become legal parents of a child in a similar manner through the use of a surrogate mother. In some states, lesbian and gay couples are able to adopt children as legal, joint parents.

Because there are some complications and uncertainties associated with rules for child custody and visitation for same-sex partners, it is recommended that both parents do everything that they can to reach a compromise on child-related issues and avoid a custody battle in court. It is particularly important to reach an agreement on the following issues:

  • Legal Custody: This determines who makes decisions about the child.
  • Physical Custody: This determines where the child lives.
  • Visitation: This determines how often as well as under what circumstances the non-custodial parent can spend time with the child.
  • Child Support: This refers to the noncustodial parent’s contribution to the costs of raising the child.

However, if both parents cannot reach a resolution themselves, they will have to submit their disputes to the legal system.

If Both Partners are Legal Parents

Both parents may be legal parents of the child if:

  • The child was born into a marriage, a registered domestic partnership or a civil union in a state where the relationship confers parental rights on a non-biological parent.
  • The non-biological or non-adoptive parent adopted the child through a second-parent or stepparent adoption.
  • If the non-biological or non-adoptive established a parent-child relationship through a parentage action.
  • If both partners jointly adopted the child.

Child-related disputes should be handled just as they are for a straight divorce if both parents have equal legal rights. In such a case, a judge will consider a variety of factors to determine what outcome is in the best interests of the child.

If Only One Partner is the Legal Parent

However, things will be different if only one of the partners is the child’s legal parent. In many states, second parents have no rights and they cannot seek either legal or physical custody. Often, they cannot seek visitation either. Also, they rarely have any financial obligations to their partners’ children although in most contested situations, they may be glad to help out financially. But in some states, courts have recognized second parents on the basis of their intent to conceive and raise children. In some states, courts also recognize their established relationships with those children.

When considering whether a second parent should be judged a “de facto parent”, a court will look at different factors including:

  • Any joint-parenting steps that were taken between the same-sex partners that could show the intent of both parties.
  • The length of the relationship between the same-sex partners, and if the child lived with the couple.
  • The presence of any parenting agreements or other documents which were drafted by the same-sex couple regarding the child.

A joint parenting agreement can often play a key role in a same-sex relationship. A parenting agreement is something that is drawn up when a joint parenting relationship begins. The purpose of the document is show that even if only one of the partners is a legal parent of the child, both partners consider themselves to be parents of the child and that they know the rights and responsibilities that come with raising the child. The agreement should also contain a clause that both partners wish to continue parenting even if the relationship ends. The agreement will offer greater certainty when it covers financial issues such as the costs of education, food and housing as well as other issues such as visitation rights. If a same-sex relationship does end, it is important that both the legal and the second parent of the child try their best to uphold the parenting agreement.

Where Can You Find the Right Lawyer?

The rules regarding child custody and visitation for same-sex partners can be complicated and can vary state by state, it is important to consult with an experienced child custody attorney before proceeding.

Photo of page author Arvind Ravikumar

, LegalMatch Legal Writer

Last Modified: 11-03-2017 09:25 AM PDT

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