Child Custody Challenges for Same-Sex Spouses

Few divorces are ever simple to resolve, and child custody is often a major issue that can bog down the process. The reason for this is usually obvious: Parents love their children and want to win as much custody over them as possible – even at almost any cost.

Things are no different for LGBTQIA parents during divorce. In fact, the challenges they may face can be much more challenging to resolve than in any other case. The reason for these challenges usually amounts to the parentage of a child, or rather, who is legally considered a child’s parent?

The answer to that question matters because only a child’s legal parents have the right to fight for (and win) custody and visitation. Below, we’ll discuss a few common scenarios when parentage of children may complicate the child custody process.

A Child Was Born into the Marriage

When an LGBTQIA parent gives birth during their marriage or civil union, the law automatically considers them and their spouse to be the presumed parents. This is the case even if the child was conceived through sexual intercourse by a third party, although that individual may be able to establish parentage as a third legal parent.

If divorce occurs within 300 days before a child’s birth, both former spouses are still considered to be the child’s presumptive legal parents.

One Parent Has a Child from a Previous Relationship

In a situation where an LGBTQIA brings a child into their marriage, their spouse doesn’t have a right to fight for custody unless they previously adopted their spouse’s child as a stepparent. This can be emotionally complicated for all parties involved because the LGBTQIA parent’s child may have developed a familial relationship with their parent’s spouse.

Unfortunately, there may be little that spouse can do to fight for custody or visitation. Usually, people in this position are barred from adoption because the child has another living legal parent outside of the marriage. Unless that person dies, or their legal relationship to their child is otherwise severed, the spouse of an LGBTQIA parent can’t adopt the child as a stepparent, and thus fight for custody during divorce.

A Child Was Born to a Couple Through Assisted Reproduction

A child born through assisted reproduction was conceived by means other than sexual intercourse, such as artificial insemination with donated gametes or the implantation of a donor embryo.

If a child is conceived through assisted reproduction, both LGBTQIA parents must establish themselves as the child’s intended parents by signing Voluntary Acknowledgments of Parentage. This is especially important if the LGBTQIA parents are not married because the parent not giving birth will otherwise have no legal parental rights, and thus no right to child custody unless they later adopt the child.

Importantly, a donor of gametes or embryos is not considered to be a child’s parent unless the donor is married to the person receiving the donation.

A Child Was Born Through a Surrogacy

For LGBTQIA parents to become legal parents of a child born through surrogacy, they should enter into a Gestational Carrier Agreement with the surrogate before the child’s conception. This is necessary whether gametes or embryos are donated by either LGBTQIA parent or if the donations come from third-party donors.

If both LGBTQIA spouses were part of the surrogacy process, they are both entitled to seek legal custody of their child during divorce.

Do You Need Help with a Child Custody Matter?

At the Law Office of Steven J. Hart, we provide our clients with the professional legal support they need for a variety of family law matters. Child custody disputes between LGBTQIA parents can be complex and difficult to resolve, but our attorney works tirelessly for his clients to ensure they retain their chances of securing the best possible outcome.

If you are facing a child custody challenge as an LGBTQIA parent, reach out to the Law Office of Steven J. Hart today to learn more about how we can help.

Contact us online or call (888) 701-0919 to get started now!