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The possibility of child custody for same-sex parents depends on several different factors to include the legal marriage between spouses and any legal rights retained by either person as a parent to the children. If there are any inconsistencies with any of the processes, it could lead to the complete loss of both custody and visitation rights.
Nonmarried Same-Sex Parents
While many parents in a same-sex relationship proceed through a legal married, not all accomplish this goal. In certain circumstances, the state they both live in will not view the matter as valid for both parents to have a chance of custody or visitation if there is no legal marriage between the two even if they split and both want to retain custody. The state may only grant custody to the person who is the biological parent or that has a legal parental right to custody. This could also completely remove the possibility of visitation without a legal marriage already in place or both parents having legal parental rights in the state.
The Bests Interests of the Child
If the state is up to date and provides fair and unbiased support for both parents, the judge will usually consider all factors and provide primary or sole custody to the parent that has the bests interests of the child in mind. While the custody usually goes to the biological parent, there are numerous cases where the judge will grant primary custody to the other parent and visitation to the birth mother or father. The bests interests of the child may be counter to what the birth parent can provide. However, in many states, the judge presiding over the case may grant joint custody to ensure the better well-being of the youth and a well-rounded experience.
Biological Connection
Many states will still grant custody for children in a marriage to the biological parent and remove the possibility of visitation for the other spouse after the divorce concludes. If the state is not accepting of same-sex relationships, the judge may even disregard any argument with any other person in connection to the divorce process and child custody conflict. The biological connection is all that matter to certain courts. If there are any arguments between spouses on how to handle the custody agreement, the matter could end in disaster for one or both parents.
Adopted Children in a Same-Sex Marriage
Generally, even when the judge or court is not accepting of a same-sex relationship, adopted children will have the possibility of a standard child custody case where visitation may still provide the noncustodial parent with visiting rights. The adopted child will have a primary parent, a joint custody arrangement and a parenting plan in place to ensure the well-being and bests interests of the youth are given. The courts will need to consider all factors and what type of arrangement is best to ensure the nurturing and care of the young person. Legal arguments can support the case as well on both sides.
The Alternate Divorce Resolution
Depending on the state, there are certain programs that can support the couple or family through the troubled times. In certain situations, this could lead to a reconciliation. However, the primary purpose of some processes is to ensure the couple can come to a peaceful arrangement without the need to impose time and money on the courts to help complete the child custody case. If the spouses are amenable to the idea and concept of an alternate divorce resolution or ADR, hiring a lawyer can help to increase the options available. The legal professional will explain the best available paths open for the couple to resolve the child custody matter along with any other problems that exist.
To remove the matter from the courts, the couple may use mediation, arbitration or a local or state remedy. Generally, using a process such as mediation is important to lower costs, cut the amount of time used and to help seek a compromise that both spouses are able to determine together. With an open dialogue, peaceful communication and a better understanding of the situation, it is possible to agree to a resolution that matches the couple.
Legal Support for Child Custody with Same-Sex Parents
No matter if the couple wants to use an ADR or proceed through the courts, the two parties can hire a lawyer to help determine what to do and how to proceed carefully. The lawyer hired can provide advice, counsel and explain options best-suited for the situation.
Provided by HG.org