Same-sex partners who are parents are likely to face some difficult challenges because children are involved. The law, both written and practiced, can be very unfair to the separating couple. Making matters even messier, the legal rules change constantly. In this area of family law, lesbian and gay parents forge new territory.
Couples should do everything possible to reach a compromise on all child-related issues by talking to one another, going to therapy, or enlisting a custody mediator. Partners who duke it out in court are likely to be ordered to mediation anyway. A custody battle in court not only harms the children, it also brings an avalanche of agony to the parents. Couples who can agree on the issues of legal custody (who makes decisions about the child), physical custody (where the child lives), visitation (how often and under what conditions the noncustodial parent spends time with the child), and child support (the noncustodial parent’s contribution to the costs of raising the child) save themselves and their children a great deal of distress.
Couples who cannot reach a resolution themselves must submit their disputes to the court. The specific rules for child custody and visitation differ from state to state, and they continue to be in flux with regard to gay parents. Here are the basic rules:
Both parents are the legal parents when:
> the child was born into a marriage, registered domestic partnership, or civil union in a state where the relationship confers parental rights on a nonbiological parent;
> the nonbiological or nonadoptive parent adopted the child through a second-parent or stepparent adoption, or established a parent-child relationship through a parentage action.
> 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 a straight divorce, where a judge will consider a variety of factors to determine the outcome that is in the best interests of the child.
When only one partner is the legal parent, things become more difficult. Generally speaking, it doesn’t matter why the second parent is not a legal parent. In many jurisdictions, second parents have no rights whatsoever, and cannot seek either legal or physical custody. Often, there is no way to seek visitation either. These parents also rarely have any financial obligations to their partners’ children, although in most contested situations the second parent would be glad to help out financially. 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.
Same-sex partners facing divorce should also:
> Know the law regarding custody and support. Each state has its own laws regarding same-sex marriage and second-parent adoption. Other states are beginning to embrace these changes or may be silent on the issues altogether. While the federal law has changed for same-sex couples, as it relates to benefit availability, laws regarding custody, support and adoption have not yet all followed suit.
> Choose an experienced attorney. A skilled and knowledgeable attorney who knows the law and is familiar with the local court can be enlisted to offer advice before making decisions or taking action relating to the children. The law changes rapidly, but the outcome of any particular dispute can depend on the judge who hears the case. When it comes to the complexities of same-sex families, it is important to consult with a lawyer who concentrates in that area of family law and has an understanding as to the same-sex laws in the home jurisdiction.
> Review agreements. Some couples may have an agreement or other contract that established parenting routines and responsibilities, or estate-planning documents that establish intention as it relates to the care of and support for minor children. Regardless of a party’s relationship status, a parent may create estate-planning documents and trust documents to protect children’s future and their ability to inherit.
> Don’t change a routine with the children because a partner says so. Intention, routine and previous responsibility weighs heavy in the court’s eye. A biologically linked parent is not presumed to be the favored parent or the one that prevails in a courtroom. A parent should stay a part of the children’s lives. Unilaterally changing the parenting routine and then asking for it to resume months later through the court system often affects credibility. For example, if a person moves from the marital residence and visits the children infrequently, the court may assume that he or she thinks it is in the children’s best interests to live primarily with the other parent.
> Understand child support calculation. Most states require documentation of gross monthly income as well as expenses related to the children’s health insurance premiums, work-related childcare expenses, extraordinary expenses or other extracurricular activities. Most states use a guideline calculation to determine an amount of support that should be paid considering the children’s accustomed standard of living, each parent’s proportionate responsibility, and obligations for other children and more.
Like straight parents, same-sex parents must put their children’s needs first. Some things that seem only right when facing a breakup that involves kids. Whichever side of the custody dispute a person is on, he or she and the children benefit when everyone thinks long and hard before acting and makes decisions based on knowledge and information, not emotion.