If you are in a same-sex marriage and considering a divorce, you are entitled to a divorce with essentially the same procedural map as heterosexual couples. There are, however, potential complications related to child custody issues that may require additional attention. Seeking the help of a local divorce attorney could make the path ahead easier.
Same-Sex Couples and No-Fault Divorce
In California, getting a no-fault divorce is the norm. That means that neither party will be blamed or shamed, and assets will be equally divided. There is no reason to expect debt and asset issues to be any more or less complicated than they are for any other couple.
Same-Sex Couple Child Custody and Visitation
There could be, however, issues with child custody if only one partner has a biological or a legal connection to the children. Legal rights are determined based on several potential questions:
- Was the child born into a civil union, domestic partnership, or marriage in California or in a state where parental rights are given to a non-biological parent?
- Was the child legally adopted by the non-biological parent?
- Did the parents jointly adopt the child?
- Was the child conceived prior to marriage, but with the full intent of sharing child-rearing responsibilities?
- Are both partners’ names on the birth certificate?
- Can de-facto parentage be established?
- Is the biological parent unfit, opening the option for a third-party custody petition (family code 3041)?
In some situations, a biological parent who is not involved in raising a child may have refused to waive parental rights, leaving no room for a stepparent adoption. In other cases, children have already been adopted by one partner prior to the marriage. The new partner in the marriage is a step-parent. As a stepparent, one may have engaged in all the normal parenting activities and responsibilities that the children needed. Nevertheless, a step-parent’s legal standing with regard to custody is virtually non-existent under normal circumstances.
Essentially, establishing parentage is the best way to be assured of the rights and responsibilities associated with being a parent, including gaining physical and/or legal custody, obtaining visitation rights, receiving or paying child support, and/or sharing childcare and medical costs.
On the other hand, even if parentage is not established, the court does have discretion to provide visitation under California Family Code Section 3100. While a step-parent may not have a legal claim to custody, reasonable visitation is clearly possible to anyone who has a vested interest in the welfare of the children. Continue reading →