Although marriage between same-sex people has been legal since June 2015, gay and lesbian couples still face unique challenges in family courtrooms. In particular, when LGBT couples get divorced, child custody and support issues can become difficult to resolve because courts require people to establish they have parental rights to kids. This can be difficult if one spouse doesn't have biological or legal (via adoption) ties to the children. If this is a situation you're struggling with in your divorce, here are a couple of ways you can establish parental rights to the kids you have with your soon-to-be ex.
Show the Child was Born During the Marriage
In almost all states, children born into heterosexual marriages are presumed to be the children of both spouses. Even if a man finds out after divorce that one or more of the kids aren't biologically his or the children were conceived using donor eggs, the court may still regard the man or woman as the legal parent and require them to adhere to child custody and support orders.
Unfortunately, this rule is not always applied automatically to same-sex couples, though there are a few states that have changed the laws to specifically include them. Children born in a legal marriage between two same-sex people in Massachusetts are considered the offspring of both parents, eliminating the need for the non-biological parent to obtain rights via adoption or other legal remedies.
Even if the law in your state is not worded to include same-sex couples, you may still be able to invoke it if you can show you and your spouse intended to conceive and parent children together. This may be done by presenting a contract you and your ex has with a donor or surrogate or providing copies of medical bills showing IVF treatments performed by a healthcare provider. Witness statements from friends and family members who may have heard you and your ex speaking about your plans for children may also be helpful.
Show Defacto Parenthood
Another way you can establish parental rights is to show you qualify under de facto parent laws. Some states will grant non-biological or non-adoptive parent's rights to the children if the person can show he or she acted like a parent to them. Typically, the state will have a list of criteria the courts look at to determine if a person qualifies.
For example, you may be considered the de facto parent in Washington State if:
- The legal or biological parent approved of and promoted a parent-child relationship between the second parent and the children
- The second parent provided financial and other support to the children without expecting to be compensated
- The second parent lived in the same home as the children
- The second parent acted as a parent figure to the children for such a length of time the kids bonded and developed a dependent relationship with him or her
- The second parent committed to permanently undertaking the parental role in the children's lives
The primary benefit of using de facto parentage laws is that it can be used in cases where the children were born prior to you and your spouse getting married. As long as the non-biological parent meets all the requirements, you can make a bid for child custody, visitation, and/or support using this law.
The family court system was designed with heterosexual couples in mind, which can make it challenging for same-sex couples to navigate successfully. It's best to contact a family law attorney with experience handling LGBT divorce cases, such as those at Law Offices of Lynda Latta, LLC, for assistance with this and other issues you may face while separating from your spouse.