The Equitable Parent and Same-Sex Divorce

When same-sex couples divorce, the spouse who is not a biological or adoptive parent may be granted custody or visitation as an equitable parent. In this situation, one of the partners is the natural parent of the child who considers both partners to be his parents. When a spouse and child have a close relationship and consider themselves parent and child, courts also apply this legal fiction. The same may apply when the biological parent encouraged this relationship.

Some courts treat a second parent “as a stranger,” giving the legal parent the right to deny contact between the second parent and the child, even if he or she “has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love.”

A small number  of courts take the opposite view, however, awarding visitation to a nonlegal parent after finding the second parent “to be such a critical part of the child’s life that it would be wrong not to grant at least some continuing contact with the child.”  In this view, the second parent is a “de facto parent” or “psychological parent,” meaning that the second parent fulfills “every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal or biological one.”

In addition to looking at the reality of the parent-child relationship in these situations, courts may consider the duration of the relationship between the partners, their intentions about parenting and any co-parenting agreements.

When the court grants an equitable parent custody or visitation, then the parent pays child support.

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