Top 5 Issues to Understand About Same-Sex Divorce With Children

Securing the right to marry was an important step forward for same-sex couples in Florida and across the United States. However, with legal marriage comes the potential for a divorce and the complications it brings with it.

Same-sex couples who married and then expanded their family with children will have unique concerns when it comes to child custody arrangements and parenting rights. Understanding the top five unique issues that influence same-sex divorces with children can help you better plan your legal strategy.

Often only one parent has a biological tie to the child

In some ways, a same-sex marriage where one parent has a biological connection to the child or children is similar to a blended family where someone with children gets married to a new partner who does not have a biological connection to their children. The lack of biological connection may mean that one parent doesn’t have grounds to seek shared custody.

Only one parent may have a legal relationship to the child

Although there are tactics ranging from artificial insemination and in vitro fertilization to the use of a surrogate to carry a child to term for an individual or couple, these ways to expand a family can present unusual challenges in a divorce.

Specifically, when neither parent has a genetic relationship to the child, the courts will have to look closely at the legal relationship. Only a parent who has formally adopted the child will have a claim to custody in court, in many cases.

Adoption offers rights and creates responsibility

Whether one parent had a biological child from a previous relationship or had already adopted a child into their household, it is possible for their new spouse or partner to formalize their relationship with the child through adoption. In a lot of ways, this process would be similar to a step-parent adoption in a heterosexual marriage.

Provided that no one else has parental rights to the child or the other parent is willing to waive their parental rights and responsibilities, an unrelated spouse of a parent with a biological or legal connection to a child can officialize their relationship to that child. Adoption in this manner may give the new parent rights to visitation or custody, but it will also create an obligation to provide child support.

You can’t seek child support from an unrelated parent

If your ex never adopted your child or made the parental relationship official, they have no right to seek custody, in many cases, which can be beneficial for you when you try to move on from your marriage. However, you also cannot turn to that former partner for support if they don’t have a legal connection to the child in your household.

The courts have, in some cases, awarded joint custody to parents with no biological tie or legal adoption of the child, which opens the door to support. Barring that scenario, you may not have the right to seek child support.

The courts are still figuring out same-sex divorce with kids

The longer that same-sex marriage remains legal, the more family court precedent can help guide the decisions that judges make in same-sex divorces. However, these cases are still relatively new and unique.

While judges can and do apply family law standards to same-sex divorces, the unique considerations involved in a same-sex union with children may mean you don’t have much legal precedent to refer to when trying to determine the likely outcome in your case. The more complex your familial relationship, the more difficult arguing the case in court may become.