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Custody issues can be more complex in same-sex divorces

On Behalf of | Nov 16, 2017 | Child Custody And Support |

It has only been a few years since the Supreme Court of the United States ruled in a landmark decision that every state in the country must recognize same-sex marriages. Since then, many long-term couples have had the right to marry after years, while younger LGBTQIA people can grow up knowing that their relationships can be legally recognized.

With the rise in same-sex marriage, however, has come demand for same-sex divorce. Regardless of the gender of the people in a marriage, monogamy can be hard. Couples can grow together as they age and change, or they can also grow apart. There’s also always the potential for abuse and infidelity. Whatever the reason a same-sex couple may have to seek divorce, it can be a difficult and complicated process. When there are minor children in the family, a same-sex divorce can become much more complicated.

Genetic ties or adoption are important in a divorce

One of the primary differences between a same-sex couple and a heterosexual couple is the means by which the couples typically produce children. Although adoption is common across all types of couples, most heterosexual couples produce children together, sharing their genes and parenting responsibility. Unless the same-sex couple includes a trans adult, chances are strong that having a child will require a different approach.

For some couples, the simplest solution is adoption. There are thousands of children around the world in need of loving homes, which same-sex families can provide. Depending on where the child comes from and when the adoption took place, only one of the spouses may legally be a parent. Similarly, if one parent has a biological tie (either as the mother who carried the child or the father who contributed genes to a child’s creation), that can also complicate the situation. If the other spouse in a same-sex marriage doesn’t complete an adoption, that can pose difficulty when it comes to divorce.

Courts are still learning how to handle same-sex divorces

For many courts, same-sex divorces are still a relatively new issue. The standards and rules in place for custody in heterosexual divorces don’t always work as well in a same-sex divorce. This can leave divorcing same-sex couples in a difficult position, where one parent may not have a legal claim to custody and the custodial parent could have trouble obtaining a child support order.

As with other divorces, same-sex divorces require careful consideration by the courts, particularly when it comes to the custody of any minor children from the family. If both spouses have a lifelong, positive relationship with the children, that can help build a case for shared custody.

If you’re worried about the outcome of your divorce and want to protect your right to be in the lives of your children, you should take steps immediately to protect yourself when considering a divorce. Working with your spouse in a collaborative divorce could be an option that protects your rights as a parent.


Contact Dorothea G. Aguero, Attorney at Law, P.C.