As Cerritos child custody lawyers, we know the rules for a divorce are the same whether you are in a same-sex marriage or a male-female marriage. Child custody battles, however, can be quite difficult – and quite emotionally wrenching – when a same-sex couple seeks to divorce.
Speaking frankly, if you are divorcing a same-sex partner in this state, and if you are a parent of one or more children, you will probably face some tough challenges. The law in California – both on paper and in practice – can sometimes be quite unfair to same-sex spouses.
If you are divorcing or anticipating the dissolution of your same-sex marriage, and you expect a dispute regarding child custody, keep reading. This is a brief introduction to the rights of both parental and non-parental same-sex spouses in a California child custody dispute.
You will also learn where to find the trustworthy legal advice and representation that you are very much going to need in a California same-sex divorce, a child custody battle, or any other matter of family law in this state.
SHOULD YOU TRY TO COMPROMISE WITH YOUR SPOUSE?
If you are fighting for a child’s custody, it is imperative to do everything possible to find common ground. If you and the spouse you are divorcing can agree to compromise, you can avoid a contentious courtroom battle, you’ll save some money, and it will be better for the child.
First, you should try to settle a child custody disagreement by talking together, perhaps with a counselor, or by seeking mediation. Family courts in this state order mediation in child custody cases anyway, and a child custody case becomes a trial in this state only if mediation fails.
WHAT QUESTIONS MUST BE ANSWERED IN A CHILD CUSTODY CASE?
If there is any way for you to avoid a courtroom child custody battle, avoid it.
Try to work with your spouse to resolve these questions:
- Who will have legal custody of the child and make decisions about the child’s education, healthcare, and religious teaching?
- Who will have physical custody of the child and provide the child’s residence?
- What will be the terms and conditions of visitation for the parent who does not have physical custody?
- How much child support will be paid by the non-custodial parent?
ARE BOTH SPOUSES LEGAL PARENTS?
In a same-sex marriage here in California, both partners may be the legal parents of a child for any of these reasons:
- The child was born into a marriage, civil union, or domestic partnership in a state where that relationship gives parental rights to nonbiological parents.
- The nonbiological parent adopted the child.
- You both adopted the child.
WHAT DO THE COURTS CONSIDER IN CHILD CUSTODY CASES?
In California divorces where both same-sex parents have equal parental rights under the law, child custody disputes are (or should be) handled no differently than these disputes are handled in any other divorce.
When a child custody dispute comes before a California family court, the judge will take into account a number of factors, but the final determination must be based on what is in the best interests of the child.
When both spouses are a child’s legal parents, California courts prefer joint custody – whether by mutual agreement of the spouses or by a court order. Sole custody is ordered only if a family court judge is convinced that sole custody is in the best interests of the child.
In any case that involves a child, the court’s highest priority is that child’s best interests, and all other considerations will be considered secondary.
WHAT IF ONLY ONE SPOUSE IS A LEGAL AND BIOLOGICAL PARENT?
If only one of the spouses in a same-sex marriage is a child’s legal and biological parent, the case is handled differently. In some states, the non-parent in a same-sex divorce has no rights and may not seek custody or visitation.
But in California same-sex divorce cases, family courts have recognized the parental rights of a non-parent on the basis of that spouse’s intentions or that spouse’s established an ongoing relationship with a child.
The courts in California will not block a non-parent spouse in a same-sex marriage from seeking a child’s custody or seeking visitation privileges. As mentioned previously, all custody disputes that come before a court will be decided by what is in the child’s best interests.
WHY IS A FAMILY LAW FIRM’S HELP SO IMPERATIVE?
The facts and details of a child custody dispute will be closely scrutinized by the court. In some circumstances, a same-sex spouse may even seek sole legal and/or physical custody of the child. Every case is decided on the basis of its particular details and the best interests of the child.
In Southern California, before you make a final decision or take any irrevocable action regarding your child or children, you must be advised by a family law attorney. Do not wait. Make the call as soon as you know that a divorce or a custody battle is unavoidable.
Divorce is never easy under any circumstances. A same-sex divorce is no easier than any other, but if you can find common ground and areas of agreement, a divorce will be somewhat less difficult and emotionally draining.
WHAT ELSE DO SAME-SEX SPOUSES NEED TO CONSIDER?
If you are the only legal parent in a divorce, and if you genuinely believe that visits with your ex-spouse are not in your child’s best interests, you have a right to try to prevent those visitations, but you may need some evidence and testimony that will demonstrate your belief to the court.
Even if both legal parents are named on a child’s birth certificate, a same-sex spouse who is not biologically related to a child should consider a legal adoption. If any child custody dispute emerges, adoption establishes legal parenthood – while a birth certificate can be disputed.
Even if a spouse has not established legal parenthood, if that spouse has in fact acted as a parent, he or she may have custody rights. As mentioned previously, the details of each case will be considered, so you’ll need a reliable family lawyer’s personalized legal advice.
An experienced Cerritos family law attorney can make all of the difference – and can make a family law dispute just a bit easier to deal with – but you must have your attorney’s advise and representation from the very beginning of the legal process. You have that right.