When you married your partner, you decided to start a family. While the relationship was good, you may not have considered the challenges that same-sex couples encounter when it comes to legal parentage.
Now that your relationship has taken a turn for the worst and you find yourself facing divorce, this issue has probably come to the forefront. Below are some issues you need to consider when it comes to child custody as a same-sex parent, especially since child custody laws across the country, including here in New York, continue to struggle to catch up when it comes to your divorce.
The major challenge
As you can imagine, the primary challenge for same-sex couples is that the law still works on the conception that a child has a father and a mother. As biological parents, they enjoy certain rights and responsibilities related to their child, including the ability to retain continued contact in the event that the couple splits. In your situation, one of you will not be a biological parent, and that is where the issues begin.
You may consider yourself a full-fledged parent, as you should. However, legally, you serve as a stepparent if the other parent is the biological parent of the child. This means that the law does not consider you to have any legal rights when it comes to parentage. Establishing legal rights requires further action from you and the other parent. In some cases, the other biological parent may also have a say in what happens.
The easiest solution
The easiest way to overcome this legal bias is to adopt your child and relieve the other biological parent of any parental rights. In this case, custody issues in a divorce proceed as “normal” since the law considers both of you as legal parents. This means that the court considers factors such as who spends more time with the child, who takes on the lion’s share of daily life for the child, and more.
The fact that one parent served as the biological parent and you the adoptive parent should not factor into the equation.
The more complex solution
If you did not adopt the child, and thus establish legal parenting rights to the child, things get more complicated. Since the court does not consider you a legal parent, you do not enjoy any rights when it comes to resolving custody matters. Even so, many courts now understand the situation you find yourself in and will consider visitation rights for you.
You may not receive the same amount of visitation rights that a legal parent would under the same circumstances, but it would at least be a start. Considering the complications that you could encounter in this part of your parenting journey, it would probably benefit you greatly to discuss the matter with a family law attorney with experience in same-sex divorce and custody matters.