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LGBT Divorce and Child Custody

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After the recognition of LGBT marriage across the United States in 2015, legal scholars and family law attorneys braced themselves for a new challenge: LGBT divorce. While LGBT couples have all the same rights and protections afforded by marriage, they also face unique challenges in one major area: Child custody.

When an LGBT couple comes together in marriage, there is one individual who might be bringing children from a previous marriage. Other times, the couple decides to adopt a child and later on in the marriage finds that their union is not sustainable. This puts the courts in a bit of a pickle. We’ll discuss some of the major issues that still face same-sex couples today.

Legal Rights and Child Custody

When a parent brings a child to a new marriage, the non-parent may file papers to take legal custody of the child. They can do this only when the parent from the previous marriage relinquishes their own parental rights or the court strips them of those rights for cause.

In cases where the original parent still has legal rights over the child, they can contest the effort for the new spouse to take custody of the child and become their legal guardian. If the parent neglects to contest the effort or is denied the right to contest the effort by the court, then both parents of the same-sex marriage are legal custodians of the child.

Challenges When Both Parents Have Legal Rights

If a child was born into the marriage or adopted as part of the marriage, the situation is trickier. Typically, if one parent brought the child into the marriage and the other parent adopted the child in the manner described above, the court will rule in favor of the parent with the longer history of being a parent to the child. This is not to say that the court will always rule in their favor. However, if a custodian adopts a child from another marriage, they will need to provide the court with an excellent and compelling reason why the child should be in their custody as opposed to the biological parent.

In cases where both parents have an equal parenting history with the child, a determination will be made on the basis of fitness. Questions will need to be answered. Questions like:

  • Which parent can financially support the child?
  • Which parent can provide for the emotional needs of the child?
  • Is one parent more stable than the other parent?

In other words, all the same questions that would need to be answered if an opposite-sex couple were getting a divorce.

If one parent is assigned residential custody, meaning they live primarily with the parent, that doesn’t necessarily mean that the other parent loses their responsibility for the child. They would still have “parental rights” to make decisions for the child and they would also be required to support the child financially. A time-sharing or visitation schedule would need to be formulated. And, as always, the court will consider the best interests of the child when coming to a decision.

Talk to a West Palm Beach Family Lawyer Today

If you’re in the process of dissolving a same-sex marriage, the West Palm Beach child support attorneys at Bruce S. Rosenwater & Associates, P.A. can help answer your questions and advocate for your interests. Talk to us today to set up an appointment.

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