gay men holding their son

Same-Sex Divorce: The Importance of Establishing Parentage for Custody Rights

Passionate advocacy and bravery from the LGBTQ+ community over the decades have helped push for same-sex rights in our society. While same-sex couples are treated equally under the eyes of the law, there are still unique challenges that remain, especially when it comes to child custody after a same-sex divorce.

Child Custody in California

Child custody agreements determine how parenting time schedules are arranged.

Typically after a divorce, physical custody is what is being determined. This means where the child will live and for what amount of time. It may be split in half between the parents, each getting 50% of days and nights. More likely than not, however, one parent will have primary custody in order for the child to have more stability.

Factors that determine child custody arrangements include:

  • The child’s age
  • The child’s relationship with each parent
  • The capability of each parent to care for the child
  • If one parent has acted as the main caregiver in the past
  • Each parent’s finances

Same-Sex Custody Agreements

When determining custody, the same above factors are considered for same-sex couples.

However, in cases where one parent is biologically related to the child, it may be more difficult for the non-biological parent to gain custody.

Therefore, it is extremely important that the non-biological parent establishes legal parentage to the child.

What is legal parentage?

Legal parentage means that the parent is legally related to the child, even if they don’t share DNA.

Establishing legal parentage allows the parent certain rights in the child’s life, such as:

  • The ability to make decisions about the child’s health
  • Access to school and medical records
  • Custody rights
  • Ability to leave an inheritance

For same-sex couples with children, establishing parentage is crucial to have these rights.

What happens if legal parentage isn’t established?

The courts may need to make custody and visitation agreements based on the biological relationship between parent and child. If this happens, the biological parent will usually be given primary custody rights - or even sole custody.

If the non-biological parent did not legally adopt the child, they technically have no parental rights. This means that even if the couple raised the child together for 10 years, the non-biological parent may find themselves unable to obtain custody after divorce.

In an uncontested divorce, the non-biological parent will likely work with the biological parent to make a custody agreement. However, a contested divorce is often more contentious, and the biological parent may be able to prevent the non-biological parent from seeing the child.

How A Parenting Plan Can Help

For same-sex couples who have children, establishing a parenting plan may help avoid these later complications.

During the marriage, same-sex couples can draft an agreement that states what will happen in case of divorce. In this plan, the biological parent can express that they plan to grant custody and visitation to the other parent. Overall, this document will show what they intend to happen if they are to get a divorce.

While this formal parenting agreement can help in a legal custody battle, it will not 100% protect the custody rights of the non-biological parent.

Long Beach Child Custody Attorney

Making child custody decisions after divorce is hard for every couple, but same-sex couples face even more obstacles when one parent is not biologically related to the child. Same-sex couples with children should thoroughly consider how establishing legal parentage can help them retain child custody in case of divorce.

At Curtis Family Law, we have the knowledge required to navigate the unique challenges of same-sex divorce. Whether it is child custody, support, or asset division, we can help. Give us a call today at (562) 315-7107 to speak with our Long Beach same-sex divorce attorney.