Same-sex partner who are parents face some difficult challenges in dealing with child custody. The law — both as it is written and as it is applied – is constantly changing can be very unfair to same-sex parents. Lesbian and gay parents are cross new territory when settling custody issues because very often only one partner is a legal parent.
Like heterosexual couples, same sex partners should strive to reach a compromise on child custody that is in the best interest of the child(ren).
The court will very likely order same-sex parents who take a custody dispute to court to mediation anyway, so it is best, if at all possible, to avoid court through compromise on all child-related issues by talking together, going to therapy, or enlisting a custody mediator.
A parentage battle or custody war in court brings an avalanche of misery on the parents, not to mention harm to children, and the element of surprise.
In the case of custody, the parents must agree on four key points: legal custody (who makes decisions about the child); physical custody (where he or she lives); visitation (how often and under what conditions the noncustodial parent spends time with him or her); and child support (the noncustodial parent’s contribution to the costs of raising the child).
Same-sex parents who cannot agree must submit their case to the court, and the rules for child custody and visitation differ from state to state where they continue to be in flux for gay parents.
Both partners may be legal parents and have equal rights to the child when the child was born into a marriage, a registered domestic partnership, or a civil union in a state where the relationship confers parental rights on a non-biological parent; or the non-biological or nonadoptive parent adopted the child through a second-parent or stepparent adoption, or established a parent-child relationship through a parentage action; or the two partners jointly adopted the child.
Where both parents have equal legal rights, child-related disputes should be handled just as they are for the divorce of a heterosexual married couple, where a judge will consider a variety of factors to determine the outcome that is in the best interests of the child.
If only one partner is the child’s legal parent, however, the climb becomes very steep for the unrelated parent because it is does not matter why he or she isn’t a legal parent. In many states, second parents have no rights; they cannot seek either legal or physical custody, or even visitation.
However, courts in some states have recognized second parents on the basis of their intent to conceive and raise children, or their established relationships with those children.