While same-sex married couples have the same rights as heterosexual married couples, divorce and child custody issues can be complicated, in part due to gendered language still used by the courts. For example, terms like “man and wife” can be used by parties to confuse issues of child custody. The courts have ruled, in some cases, that the biological mother of the child, in a same-sex marriage, even though she may have been artificially inseminated, is considered to be the mother in child custody suits. To learn more, click here.
Married LGBTQ Couples
After the case of Obergefell v. Hodges, all states must recognize a same-sex couple’s right to marry. If an LGBTQ couple has chosen to marry and has children after marriage, the courts will view each parent as having visitation and custody rights.
When same-sex married couples in Nassau County go through a divorce, if they cannot agree on custody, visitation, and support, the courts will intervene and decide the matter. They do this based on the evidence and arguments presented by the parties attorneys. This is why it is crucial to have an experienced Nassau County family law attorney stand up for you in court.
Divorce is hard enough. Having an attorney that doesn’t “know the ropes” can multiply your misery.
Any way you cut it, the judge will always consider the best interests of the child as a priority in deciding custody, support, and visitation. This can be based on factual evidence as well as subjective information put forth by your attorney. A strong argument, even in the face of weak evidence, can sometimes make or break a case.
Domestic Violence In Same-Sex Divorce
In any divorce, if there were domestic violence issues in the marriage, these will play a major role in a judge’s decision. As part of the child’s best interests, a judge will consider what types of domestic violence were reported and documented. A lot of times there are false allegations of domestic violence that first surface at the time of the divorce. Judges have seen it all. It’s up to your lawyer to protect you in court.
Was there ever an Order of Protection against one of the spouses?
An Order of Protection, previously issued by another judge upon one of the spouses, could cause an adverse ruling in your child custody case. A judge does not want to put a child at risk of harm by a violent parent. If you have had a restraining or issued against you in the past, you can be certain this fact will surface its ugly head in court. Be sure to tell your family court attorney of any OOPs that were issued against you ASAP, so that they can be proactive in court, rather than be caught off guard.
Your attorney should be like a combination of the old, respected consigliere and the gladiator, both rolled up into one. Make sure you have the right family lawyer going into battle for you.
The Scenario Gets Even More Complicated If One Spouse Already Has A Child Going Into The Marriage
It’s a complicated question, and the answer can depend on various factors. For instance, if a couple was together for a substantial time, and both played a major role in the upbringing of the child, this will factor into family court decisions. It’s a judge’s job to weigh out all the facts and factors presented by the attorneys and make their rulings accordingly. The non-biological parent of the child, sometimes referred to by the courts as the “second parent”, has a very little claim on the child’s future if they did not adopt the child.
Do Unmarried, Same-Sex Couples Have The Same Rights?
If your partner has a biological child from a previous relationship, and you did not take legal steps to adopt the child, this could affect child custody, visitation, and support decisions in your case. A parent who has not legally adopted the child may not be ordered to pay child support. Make sure to point these issues out to your attorney, if any apply to your situation.
Same-Sex Adoption
Same-sex couples have the same rights to adoption as heterosexual couples in NY. State. If the second parent, the non-biological parent, adopts the child, then they will have legal +custody rights to their children, should a divorce occur. The family court judge will rule on these matters in much the same way as in a heterosexual divorce. LGBTQ couples can adopt through foster care agencies, private agency adoption, and private adoptions, whether they are married or not. You should also ask your attorney about a parentage decision, which can substitute for adoption.
Parenting Agreements
A parenting agreement can be somewhat similar to a pre-nuptial agreement, in that it addresses issues that may arise during the LGBTQ marriage. The agreement, in effect, lays out the rules of the marriage, and what is to happen in the event of a divorce. In particular, it addresses a parent’s rights and responsibilities regarding raising their children. It can even address child visitation after a divorce. It should be noted that a parenting agreement isn’t written in stone, and does not guarantee anything 100%. Other factors that occur after the signing of the agreement, like domestic violence, can affect the outcome.
