If you’ve been in a same-sex relationship and you are splitting up
with your partner, and you have been raising children together, you may
be facing challenges not common to heterosexual couples. California is
definitely one state that has been blazing a path for same-sex couples
to enjoy the benefits of marriage, but
child custody is still an area of the law that is developing.
If you are getting a
divorce or ending your
domestic partnership and you have children together, our advice is to do everything you can
to end things amicably. This means try to work things out yourselves.
Stay out of court if possible. Reach an agreement that is first and foremost,
in the best interests of your children.
Much of how your child custody case unfolds has to do with who is the children’s
legal parents. If you’re both the legal parents, things will be
less complicated. If only one of you is the legal parent because the other
biological parent refused to waive their parental rights and allow for
a stepparent adoption, or because one of you adopted the children before
the union, you’re both going to have to think long and hard about
what’s best for the children.
When You Both Raised the Children
Suppose you both raised the children; however, your spouse or domestic
partner gave birth or fathered the children before you met. The other
biological parent is barely in the picture and you have been raising the
children since they were very young, but the other biological parent refuses
to give up their parental rights. In this scenario, your partner is the
legal parent of the children, but you are not.
In order for you to become the children’s legal parent, you would
have to complete a stepparent adoption, but that’s impossible. Despite
the fact that YOU have been raising the children, you don’t have
the same rights and responsibilities as your partner. In fact, you may
have been the stay-at-home parent who’s been caring for the children
the majority of the time for years, but as long as you are not their legal
parent, in the eyes of the law you don’t have equal rights.
If this is your situation, try to encourage your soon-to-be-ex to do what’s
in the best interests of the children. The children may barely know their
“real” mom or dad and they may be very connected to you. Since
you’ve played the critical role of caregiver all these years, you
are the one the children are attached to. No doubt, you should be in their
lives but the question is, what are your legal rights as a same-sex parent
who is not the children’s legal mother or father?
Rights of Non-Legal Parents
California’s child custody laws are not only gender neutral, they
are the same for stepparents, whether they are in same-sex or heterosexual
marriages. In other words, your rights as a same-sex parent are the same
as they are for heterosexual stepparents. There are thousands of marriages
in California where stepparents are raising stepchildren as their own,
sometimes from infanthood and the courts recognize this.
If you are not the child’s legal parent, meaning you have not adopted
the child, nor are you their biological parent, you may have rights under
Section 3100 of the California Family Code. Under Sec. 3100(a) it reads: “In
the discretion of the court, reasonable visitation rights may be granted
to any other person having an interest in the welfare of the child.”
So, if you have been raising your partner’s child or children and
you are getting a divorce, you have the legal right to ask the court for
reasonable visitation under Sec. 3100. Hopefully, you and your partner
will be able to reach an agreement on child custody outside of court;
however, things can get more complicated if the child’s other biological
parent is also seeking custody, or if they are opposing your visitation request.
Is There a History of Domestic Violence?
Domestic violence deserves mention in this post. Is your partner accusing you of abusing
him or her, or are they accusing you of child abuse? If so, please be
aware that the courts are going to want to know more.
They’re going to want to know if you’ve ever been arrested
for domestic violence and if so, how long ago that was. If your partner
can prove to the court that you’ve been abusive in the recent past
and you are not the children’s legal parent, a
domestic violence finding can act against you, even if you are the one who’s been
the primary care giver all this time.
When You Are Both Legal Parents
If you are both legal parents, all child custody proceedings will be handled
the same as they would any divorce, including a heterosexual divorce.
For example, if you both adopted the children or if you completed a stepparent
adoption, then you would both have the same rights and responsibilities
towards the children in the divorce.
When both parents are the legal parents, they are strongly encouraged to
work out a child custody arrangement with each other. If a couple cannot
agree, it’s handled just like any other divorce: the judge looks
over the details of the case and renders a decision that’s in the
best interests of the children.
At Claery & Hammond, LLP, we have extensive experience handling domestic
partnership and same-sex divorce cases. If you need help with a same-sex
child custody matter, we can help.