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 that 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. Along with the 2015 legalization of same-sex marriage nationwide, came updates to parenting rights related to same-sex marriage.
This means that when a child is born during a same-sex marriage, both of the parents can be presumed to be the child’s legal parent. In addition, when same-sex parents adopt children, they can both be recognized as legal parents.
As a result, when same-sex parents divorce, they can have the same visitation and custody rights as other married couples. The majority of states provide a marital presumption of parentage, assuming that both spouses in a marriage are a child’s parent when a child is born during that marriage.
Although this concept also applies generally to same-sex marriages, it may be inconsistent, especially with non-gestational parents. With a gestational mother, that mother and the wife will be presumed to be the child’s parents. This applies even in cases where the child was conceived using donor insemination.
In contrast, the assumption may not apply when the same-sex married couple is male. This is because the presumption of parentage is not always automatic for couples who use surrogacy because the laws can be gender-specific and different in each state.
Additional Considerations
In some states, the non-biological parent may not be allowed to be listed on the child’s birth certificate. When possible, parents should obtain a court order of adoption or a parentage judgment that will be recognized in every state under the Full Faith and Credit Clause.
It is also important to be aware that parentage presumptions can apply even when a couple is not married. Some states have a holding out provision that provides that a person can be presumed a parent if they reside in the same household with a child for a specific period of time and openly hold out the child as their own. The requirements for meeting this presumption may vary, so it is important to consult with an attorney.
How Does Child Custody and Visitation Affect Married Couples?
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.
How Does Child Custody and Visitation Affect Unmarried Couples?
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.
What Are the Parenting Agreements?
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 outline 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 can be challenging. The couple can use an alternate divorce resolution or an Alternate Dispute Resolution (ADR) to help create their parenting agreement.
What Are the Rights of the Parents and How Does the Court Deal with Them?
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.
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.
What Are the Laws on Same-Sex Marriage?
As previously noted, the 2015 decision legalizing same-sex marriage nationwide also effected visitation and child custody for same-sex relationships. There can also be interactions with state laws on assumed parentage, visitation, and child custody issues.
The laws that govern all of these issues can be updated at any time, so it is essential to have legal advice from a family law attorney to ensure the most up-to-date information is being used. Cases that involve children have the potential to be complicated and stressful for everyone involved, even when the parties are getting along fine.
Because these laws may change at any time, especially when there is a change in presidential administration, it may be helpful to review some of the state-specific laws on same-sex marriage that would apply if the 2015 decision were to be reversed in the future. These are examples from across the United States:
- Alabama: Has a statute prohibiting same-sex marriage, civil unions, and domestic partnerships
- Arizona: Has a statute that prohibits same-sex marriage
- California: Has a statute that recognizes same-sex marriage, civil unions, and domestic partnerships
- Colorado: Has a statute that prohibits same-sex marriage
- Florida: Has a statute that prohibits same-sex marriage
- Kentucky: Has a statute that prohibits same-sex marriage
- Louisiana: Has a statute that prohibits same-sex marriage
- Maryland: Has a statute that recognizes same-sex marriage, civil unions, and domestic partnerships
- New York: Has a statue that recognizes same-sex marriage only
- Montana: Has a statute that prohibits same-sex marriage
- Nebraska: This state neither recognizes nor prohibits same-sex marriage, civil unions, or domestic partnerships
- Ohio: Has a statute prohibiting same-sex marriage, civil unions, and domestic partnerships
- Pennsylvania: Has a statute that prohibits same-sex marriage
- South Carolina: Has a statute that prohibits same-sex marriage
- Texas: Has a statute prohibiting same-sex marriage, civil unions, and domestic partnerships
- Virginia: Has a statue that recognizes same-sex marriage only
Some states have challenged the 2015 legalization of same-sex marriage, which can take many years to resolve through the court system. There is, however, a federal law that will still apply even if the 2015 law is reversed, called the Respect for Marriage Act (RMA).
It provides that all legal marriages performed, including same-sex marriages, must be recognized by the states and the federal government. This would also impact visitation and child custody rights for those marriages to which the RMA would apply.
Why Should I Be Familiar With These Marriage Laws?
The current same-sex marriage laws mean that most same-sex married couples are also afforded the related visitation and custody rights that heterosexual married couples also have in the event of a separation or divorce. If the laws do change in the future, however, the state laws may go back into effect.
As discussed above, the RMA would still apply to legal marriages already performed, meaning that, so long as the couple was legally married when same-sex marriage was legal in the United States, they would be afforded those protections. There may be issues or conflicts, however, with the state laws.
If the 2015 law is overturned, the states would be permitted to make their own laws about same-sex marriage again. Because all of these laws can interact, be different at the state and federal level, and may change at any time, having a family law attorney is absolutely essential for any visitation or child custody issue arising from a same-sex relationship.
When Do I Need to Contact a Lawyer?
When consulting a lawyer, it is important to consider all options and how an ADR can be 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. If you have any type of question or concern about child custody and visitation arising from a same-sex relationship, it is free to use LegalMatch’s lawyer matching service to find a child custody lawyer near you who can help.
It is quick and convenient, as it only takes a short amount of time to complete the online submission process to start being matched with child custody lawyers in your area who have experience handling same-sex marriage child custody and visitation cases. LegalMatch can help alleviate some of the stress that comes with handling a legal issue involving your child, so get started today.
