Child Custody Issues Only Same-Sex Couples Encounter

by Dec 7, 2020

In June of 2015 same-sex marriage was legalized in the United States which was a huge victory for Human Rights. However, there is still a long way to go in changing some of the deeply held biases against the LGBTQ community. We know in any case, in any demographic, some marriages will end in divorce. I had the opportunity to sit down, via Zoom, with Claudia Work. Claudia is a family law attorney and specializes in same-sex and cohabitant divorce issues, as well as adoption and surrogacy; and the list goes on. We sat down to discuss potential issues same-sex couples can face in court when it comes to child custody.

“Married same-sex couples with children, you have two basic scenarios. Same-sex couples that had children before same-sex marriage was legal and couples that had children after Same-Sex marriage was legal.” Thankfully Claudia kept her legal terminology to a minimum for our conversation. She continued…

Before The Legalization of Same Sex Marriages

In the case of a couple that had children before same-sex marriage was legalized, the non-biological parent would have to adopt, to legally make a decision on behalf of the children. If the non-biological parent did not adopt, then the biological parent would have the sole right to legal decision making (at least on paper).

In the state of Arizona before 2014 only married couples could adopt, so same-sex couples would have to adopt in another state. Now that same-sex marriage is legalized, the non-biological parent has the option to do a stepparent adoption.

If the non-biological parent neither adopts nor stepparent adopts their children, they stand only in Loco Parentis which is covered by the Third-Party Visitation Statutes. Meaning if you are not legally related to this child you only get visitation. “It’s a very skewed hostile situation for the non-legal parent and the child”.  Unless adoption is done during the marriage the “court has no authority to award joint legal decision making over the children”.

After The Legalization of Same Sex Marriages

The other common scenario is if a child is born during the marriage after same-sex marriage was legalized. In Arizona, there is a marital presumption. Which states if a woman has given birth during the marriage, the legal spouse (man or woman) of that woman is assumed to be the parent. This only applies to women; the marital presumption allows couples to receive a court order that states both women are legal parents. However, it can be challenged.

After discussing the potential struggles same-sex couples can face, she explained how these two situations can be avoided.

1. Steparent Adoption

This gives the non-biological parent the same rights as the biological parent

2. Same-Sex Mediation

Genetics should not matter. Claudia clarifies here, genetics should not matter in court if the law is applied correctly. However, you cannot guarantee you will have a judge without any bias against same-sex couples or a non-biological parent.

Other Issues

Lastly, Claudia covered some common issues couples face outside of child custody but with spousal maintenance. A couple could have been together for 30 years but only legally for the past 6. One partner could qualify for spousal maintenance in a 30-year marriage. However, judges and attorneys tend to look at the years the couple was legally married, instead of the years, the couple was together. “There are mindsets that need to be changed.” Claudia states. I am hopeful over time people will not just look at the year’s same-sex couple has been legally married, but all the years a couple has spent together.

There is still a long journey in the fight for human rights. Divorce is complicated enough and due to outdated biases, same-sex divorce can be equally as complicated if not more so. Depending on the couple, mediation can be a way to avoid some of those biases and give control to a couple who for so long did not have the control to say their love was legitimate.

At Smarter Divorce Solutions, we pride ourselves in helping ALL couples reach agreements that work for them at the time of their divorce and long into the future, regardless of any shortcomings of the legal system. Talk to us today to find out how we can help in your situation.

For more information about Claudia, or to get in contact with her you can visit her site here.

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