Complications in LGBT divorces with children

On Behalf of | Feb 5, 2018 | Divorce |

Once the Supreme Court ruled that same sex-marriage was a right, regardless of what state a couple lives in, many couples quickly eloped. Others finally executed plans they had spent years hoping to see through. Getting married was like a dream come true to these couples, who had long faced denial of equal rights under questionable state laws.

However, with the rise in same-sex marriage came the eventual need for same-sex divorce. While some couples face a relatively straightforward process, same-sex couples with minor children may have quite an uphill battle, especially if they can’t agree on terms for a parenting plan that includes both parents. Knowing the potential issues and complications can help you understand your chances of securing shared custody or visitation.

The courts often look at adult relationships to the children

One issue unique to same-sex marriages is that it is common for only one parent to have a biological tie to the children from the family. One father may donate sperm for in-vitro fertilization or insemination of a surrogate mother. In lesbian couples, one partner may carry the child and provide the egg. In both cases, this means that the other parent does not have a biological tie to the child.

In these cases, the best option is for the other parent to legally adopt the child. While there is typically a presumption that a husband in an opposite-sex marriage has paternal rights, the same assumption does not apply to same-sex marriages. Similarly, if a same-sex couple marries when one partner already has children, either through birth or adoption, the best solution to ensure equal rights for both spouses is a stepparent adoption. Barring that, asserting parental rights can be complicated in a same-sex divorce.

The courts want what is best for the children

There is still very little precedent regarding dealing with contentious custody battles in same-sex divorces. That can leave one spouse worried about losing this critical relationship. The courts have to make a difficult decision. Like in opposite-sex divorces, Florida law requires that the primary guiding factor for any custody decision must be the best interests of the children.

If the parent without a legal or biological tie to the children can prove that he or she has had a significant role in the life of the child and maintains the ability to support and provide for the child, that can help a claim for visitation or shared custody rights. Similarly, while the courts typically don’t enforce prenuptial agreements that deal with child custody or visitation, executing a contract with your partner prior to the adoption or birth of a child can help show that there was always intention to share both parenting rights and responsibilities between both spouses.

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