How Is Child Custody Determined in Same-Sex Divorce Cases? (and can a lawyer help?)

Same Sex Child Custody
By: Guest
January 03 2019

A divorce is in itself an unhappy event but things can get even more complicated when it takes place between same-sex couples. When things end, it becomes crucial for both the parties to understand how the child custody arrangement will affect their lives. Most importantly, how will custody be decided? How the court decides the same-sex divorce cases and child custody, could negatively impact both of the parents.

Same-Sex divorce cases

The major problem that arises…

Same-sex divorce

As a matter of fact, it has been witnessed that the courts often do injustice to  same-sex couples when they separate. Further, the common practices are constantly changing for this type of divorce. These problems can impact upon (and makes slower) the entire process of custody for both the parents, whether biological or adoptive

Ending up on a compromise

Same-sex couples divorce

Some old-fashioned judges may have a difficult time passing sound judgment for same-sex divorce cases. So it’s advisable that same-sex parents compromise on their own before hitting up the last resort (the court). To this end, parents may opt for mediation or a substitute legal proceeding to dissolve their marriage and decide upon who will get primary custody (and who will get visitation). With a divorce and custody lawyer, the entire process often becomes a lot easier and faster.

When both spouses are legal parents

The parents in same-sex marriages may either have given birth to their children or adopted them. The judge may, but will not necessarily, award primary  custody to the biological parent and give the non-biological parent visitation right. If neither of the two parents are the biological parent of the child, a judge may issue equal custody or award primary custody to one of the parents. Consulting a lawyer becomes very important to avoid a  very difficult decision from the judge. The problem may have solved to a better extent with the help of a lawyer.

A single legal parent

Same-sex custody divorce

The situation is treated much differently when there is only one legal parent of the child (which is determined by the laws of the home state). This will generally result in the court giving sole custody to the legal parent and the non-legal parent not being bound by law to support the child financially.

Mutually adopted child

Same-sex divorce custody

In an instance when a child is legally and mutually adopted by both the parents, the judge should award primary custody to the parent who is most capable of caring for the child. The judge may appoint a guardian ad litem to conduct an individual interview with the child to come up to a final decision. This very similar to how non same-sex divorce cases are handled.

The role of lawyer in same-sex child custody issues

Same-sex custody cases

Family law attorneys must comply with the courts to  navigate the complications that may arise from same-sex divorce cases. If you were previously engaged in a same-sex partnership and decide on for a separation, it is recommended that you seek guidance from a lawyer or a law firm that deals in family divorce matters.


This is a guest post by Mordan Sean. This post has been edited for syntax and grammar.  The Law offices of Jay Leiderman is not responsible for the accuracy of the content herein or any opinions or ideas expressed herein.  This post is for entertainment and literary value and is not intended as legal advice.  This post does not establish an attorney-client relationship of any sort.  If you have legal questions about ideas presented herein please contact a lawyer knowledgeable in this field of practice.

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