When it comes to issues like child custody and visitation, same-sex couples can often face unique challenges, legally speaking. This is because the specific laws for child custody and visitation differ from state to state, and many of these rules continue to change over time with regard to gay and lesbian parents.

Same-sex couples may bring a child into their lives through conception and birth. For a lesbian couple, this can involve utilizing a male donor or visiting a sperm bank, and then having one of the partners become pregnant. The other parent in such a relationship can then become a legal second parent through stepparent or second parent adoption. 

However, adoption rules are also applied differently in different states and jurisdictions. Gay men can also become legal parents of a child in a similar manner through a surrogate mother. In some states, lesbian and gay couples are able to legally adopt children as joint parents.

There can be many complications associated with rules for child custody and visitation for same-sex partners. Because of this, 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 for the parties in the relationship to reach an agreement on the following issues:

  • Legal Custody: This determines who makes legal decisions about the child and/or on behalf of the child.
  • Physical Custody: This generally determines where the child lives most of the time.
  • Visitation: This determines how often as well as under what circumstances the non-custodial parent (the parent with fewer custody rights) can spend time with the child.
  • Child Support: This refers to the non-custodial parent’s financial contributions to the costs of raising the child.

If both parents cannot reach a resolution themselves, they will have to submit their disputes to the legal system. The court may then intervene to make determinations regarding the child. 

All court determinations and conclusions are based on the “child’s best interest” standard, even if the parents reach an agreement themselves. This means that the court will prioritize the child’s interests, health, and well-being ahead of any preferences of either parent. 

Can Both Partners Be Legal Parents?

Both parents in a same-sex partnership may be legal parents of the child if:

  • The child was originally born into a marriage, a registered domestic partnership or a civil union in a state where the relationship grants parental rights to a non-biological parent;
  • The non-biological or non-adoptive parent legally adopted the child through a second-parent or stepparent adoption;
  • The non-biological or non-adoptive established a parent-child relationship through a relevant parentage action (where the child-parent relation is formally recognized); or
  • Both partners jointly adopted the child.

Child-related disputes are typically 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 wide range of factors to determine what outcome is in the best interests of the child. These can include:

  • The history of the relationship of each parent to the child or children;
  • The financial background of each parent; 
  • Whether there is any history of child abuse; and
  • Whether the child has any special physical, mental, or emotional needs. 

What if Only One Partner is the Legal Parent?

Things will be different if only one of the partners is classified as the child’s legal parent. In many states, second parents might not have any rights and they cannot seek either legal or physical custody. Often, they cannot seek visitation rights either. 

Also, they rarely have any financial obligations to their partners’ children; however, in most contested situations, they may be glad to help out financially. In some states, courts have recognized second parents based on their intent to conceive and raise children. In some states, courts also recognize their established relationships with the children.

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

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

A joint parenting agreement can often play a very helpful role in a same-sex relationship. Ideally, a parenting agreement is drawn up when a joint parenting relationship begins. The purpose of the document is to 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. The document also helps show that they know the rights and responsibilities that come with raising the child.

The agreement should also contain a clause or provision stating that both partners wish to continue parenting even if the relationship ends. The agreement will offer greater certainty and clarity when it covers financial issues such as:

  • Costs of education; 
  • Food and housing responsibilities; and
  • What to do in the event of a medical issue/crisis.

If a same-sex relationship does end, it is important that both parents of the child do their best to uphold the parenting agreement.

Should I Hire a Lawyer if I Need Help with Same-Sex Custody and Visitation Matters?

The rules regarding child custody and visitation for same-sex partners can be complicated. They can also vary state by state, so it is important to consult with an experienced child custody attorney before proceeding. Your attorney can provide guidance and input regarding the specific laws of your state, and can represent you during important court meetings.