Same Sex Marriage & Custody: What To Expect

Separation and divorce are always tough, especially when children are involved.

Same-sex marriage didn’t become legal in Florida until January 2015 and even more recently did the Supreme Court declare same-sex marriage legal in all 50 states. Prior to that, many same-sex couples with children going through a separation encountered a number of custody challenges.

Both heterosexual and same-sex couples can agree that custody decisions are often the hardest ones to make. What can a same-sex couple expect out of a custody battle when they separate or divorce? It depends on the establishment of paternity. Recently ruling doesn’t have an impact on children who were born before marriage, but it does affect children born into wedlock. This means issues like conception, adoption, surrogacy, etc. will be brought out to the forefront.

When divorcing…

Now that same-sex marriage is legal in all states, timesharing arrangements are the same as those of heterosexual couples if the child is brought into the world after the couple marries. When a same-sex married couple adopts a child, they are both legal parents to that child. What does this mean? Courts will handle custody arrangements and timesharing disputes just like those of heterosexual couples.

When breaking up (not married)…

Prior to the recent rulings, a separation was the more common, yet more difficult, scenario. In cases where one party was a biological parent, that person would be considered the legal parent. The other party would have a hard time gaining parental rights, as they do not have a legally binding relationship.

In these cases, the parent legally responsible for the child would retain custody. In many states, the non-biological parent would have no legal rights, even if they have been present in the child’s life from the beginning.

How does the new ruling affect custody?

While the new ruling makes it easier for same-sex couples to establish paternity, it’s too recent to know how things will change. Stay tuned for further analysis.

Here at the Law Offices of Michael B. Brehne, P.A., we are passionate about family law. Contact our family law attorneys today.

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