The rules surrounding same-sex marriage, divorce and custody are constantly changing. In addition to being confusing, these pieces of legislation also come with emotional consequences for the parents affected. Many parents in same-sex relationships may have serious concerns that they will be denied custody or visitation rights because of the legal status of their marital or parental relationship.

Since many topics in this area of law are not yet settled by precedent, it can be extremely difficult for California residents to navigate them without help. It’s critically important that before making decisions or taking action relating to your kids, you seek counsel from a skilled and knowledgeable attorney who knows the law and is familiar with your local judges. The outcome of any particular dispute can depend on these factors. Fortunately, the Ventura family law attorneys at Bamieh & De Smeth, PLC have the experience and skill it takes to handle your same-sex custody dispute. We understand how important your children are and will do everything we can to help you keep or attain custody rights. Call our law offices today at (805) 643-5555 for a free consultation.

Custody and Same-Sex Divorce

Custody rights are a serious roadblock for same sex couples seeking a divorce. If a couple is separating amicably, the custody determination will generally be easier. However, if a good-natured compromise cannot be reached, the courts will look to factors like biological information, perceived caregiver roles and other potentially unclear aspects of the child’s family life to make a decision. There is still much case law to be decided in this area before same-sex divorce issues will be settled according to a precedent. Until then, a useful starting point to work with is whether only one or both spouses are legal parents of the child(ren).

Who Gets Custody in a Same-Sex Marriage if Both Spouses Are Legal Parents?

Even in same-sex marriages, it is possible that both partners are the legal parents of the child. When this is the case, both parents will generally have equal legal rights regarding custody and support issues. Child-related disputes between parents with equal rights will usually be handled just as they would in any divorce case. The judge will evaluate a wide range of factors to determine what is in the best interest of the child (discussed in detail below).

How Can You Become a Legal Parent in a Same-Sex Marriage?

There are several different ways to attain the status of legal parent without necessarily being a biological parent. These include situations where:

  • Both partners jointly adopted the child.
  • The nonbiological or nonadoptive parent adopted the child through a second-parent stepparent adoption.
  • The nonbiological or nonadoptive parent established a parent-child relationship through a parentage action.
  • The child was born into a marriage, civil union, or registered domestic partnership in a state where the relationship confers parental rights on a nonbiological parent.

Who Gets Custody in a Same-Sex Marriage if Only One Spouse is a Legal Parent?

Things will generally be more complicated when only one parent is a legal parent. In most states, a non-legal parent has no legal rights whatsoever as a matter of law and are prevented from seeking custody or visitation. However, some California courts have begun to recognize second parents on the basis of their intent to conceive and raise children, or their established relationships with those children.

Does California Allow Non-legal Parents a Claim for Visitation or Partial Custody?

California courts cannot deny a parent’s right to custody or visitation because they were never married to the other parent. Non-legal parents in California have the option to file for visitation, partial custody of the child, or even a parentage action depending on the circumstances. As with all child custody disputes, everything will be evaluated in light of whether the judge determines it to be in the best interest of the child.

The Best Interest of the Child Standard

The Best Interest of the Child standard is always the determining factor in a custody dispute. A judge will look to all of the following to make a decision:

  • Emotional ties between the parents and the children.
  • The age and health of the child.
  • The ability of the parents to co-parent.
  • Which parents has been the primary caregiver until this point.
  • The amount of time each parent spends with the children.
  • The emotional and physical health of the parents.
  • The child’s safety, including any history of family violence, substance abuse, and the child’s current living environment.
  • The employability and ability of both parents to care for the child.

Judges have wide discretion on how heavily to weigh each factor in any family law matter. Each case will be decided on a very fact-specific basis.

Work with Experienced California Same-Sex Custody Attorneys Today

Child custody can be an emotionally draining topic for same-sex couples to deal with. Since the laws in this area of law are constantly changing, same-sex couples in California would benefit from consulting an experienced family law attorney for guidance. The Ventura family law attorneys of the Law Offices of Bamieh & De Smeth, PLC will work to provide you peace of mind in your child custody dispute. Call our law offices today at (805) 643-5555 for a free consultation.