Child Custody Issues for Same Sex Couples

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.