The Our Family Wizard Blog

The Importance of Family


Same Sex Custody Issues

On September 20, 2011, there was a major win for GLBT community, the 17-year-old military policy of "Don't ask, Don't tell" was repealed.  Same sex marriages are legal in some states, but have not been legalized in most.  Furthermore, many same sex couples, married or not, have children of their own and children from previous relationships.  As with straight couples, not all of these relationships will make it, so what happens with child custody?

No matter how you feel about same sex relationships, determining child custody and visitation arrangements for same sex parents is a very new and still emerging area of family law. Since same sex marriage and other issues are still very controversial in most U.S. states, same sex custody issues have not been widely considered in the past. Each state is beginning to recognize same sex custody issues at their own pace.

Same sex custody issues across the country

Many states throughout the country do not completely recognize same sex marriages, civil unions, or same sex adoptions. This means that the legal rights of same sex parents including those of custody are different in all states. Same sex custody issues are still very young, but they are beginning to become recognized in some places. Many states do not facilitate same sex custody issues as well as other, yet other states may not recognize these issues at all.

Same sex custody issues and considerations

Determining child custody issues for same sex parents poses a number of new obstacles to the family law courts. There are many new factors that must be considered, particularly those that make a fair determination seemingly impossible for the courts. Probably one of the biggest same sex custody issues is that only one parent can be the biological parent of the child. The courts must consider both the biological parent as well as surrogate parents when making a determination. If a surrogate is used they must also be considered even though they may not be an active parent for the child. In turn, this means that the non-biological parent is often given much less consideration for custody, which can be argued as being extremely unfair. The non-biological parent has no formal legal ties to the child, making it difficult to give them proper consideration when it comes to custody. In many cases, these non-biological parents are given consideration on the basis that they have acted as a custodial parent of the child physically, financially, and emotionally for a significant amount of time.

Same sex custody issues and adoption

In many same sex unions or marriages, the non-biological parent will consider adopting the child in order to gain a legal relationship and ties to the child. In most cases, if the non-biological parent has no legal ties to the child, they will not be considered for custody. Adoption of a child is separate from other same sex custody issues but it is a necessary step for a non-biological parent seeking custody. When determining whether or not adoption will be granted, courts will typically consider the consent of the biological parent, the emotional connection between the child and the non-biological parent, and the ability of the non-biological parent to care for the child both physically and financially. Same sex custody issues also include those of child support. With a legal adoption of the child by the non-biological parent, the court often feels that they have substantial ground to order the non-biological parent to pay child support.

Resolving same sex custody issues and visitation conflicts is not an easy task. Same sex parents must recognize that each state may have very different laws regarding same sex custody. It is important for same sex parents to get practical guidance and efficient legal help from experienced family law professionals in their county or state. The OurFamilyWizard website® is dedicated to providing co-parents with the tools and resources they need to easily manage their custody agreements. After becoming familiar with same sex custody issues and laws in your state, please visit the Child Custody and Divorced Parenting page for more information.