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Child Custody Issues When a Same-Sex Couple Gets Divorced


When the United States Supreme Court legalized same-sex marriages nationwide, it was an historic moment for same-sex couples. Although it was a groundbreaking victory for marriage equality, same-sex couples still face many challenges when they divorce, especially regarding child custody disputes.

In the past, if a heterosexual couple had such a dispute, a court would usually step in and resolve the matter, typically holding some positive bias for the mother. But when the role of “mother” cannot be defined by gender alone, the solutions become less clear.

The Dilemma of the First Parent and Second Parent in Same Sex Marriages

How a same-sex couple gets their child can weigh heavily on child custody issues when they dissolve their marriage.

If one partner gives birth to the child, they are considered the “first parent” and their spouse is considered the “second parent.” Should they ever divorce and cannot agree on child custody terms, a court may rule in favor of the first parent based on this description alone.

For men in a same-sex relationship that are using a surrogate mother to give birth to their child, the partner with direct genetic ties to the child will be considered the first parent.

If a same-sex couple has chosen to adopt a child through an agency, orphanage, or an independent organization, they will have to decide how they wish to adopt the child.

  • If they choose to second parent adopt the child, the predetermined “second parent” will likely be given less parental rights in a divorce.
  • If they choose to jointly adopt the child, each parent’s role and interaction with the child will weigh heavily on a court’s decision in a child custody dispute, rather than their given title.

However, despite the Supreme Court’s recent ruling on same-sex unions, it is possible that some states or cases will not allow joint or second parent adoption for same-sex couples.

How California Decides Child Custody

California State law will almost-always use the same guidelines in a same-sex divorce as it would in a traditional divorce. That is to say that if you are going through a divorce and have been named the “second parent,” you will likely still be able to make your case in court and fight for child custody rights.

When deciding who will get primary custody of a child in a same-sex divorce, a judge will consider:

  • Each parent’s ability to provide for the child
  • Child’s age and health
  • Relationships between the child and each parent
  • Child’s attachment to their environment
  • History of violence or crime for each parent

If you live in central California and need help settling a child custody dispute during your same-sex divorce, contact Arnold Law Group, APC right away. Our Fresno child custody lawyers have more than 30+ years of shared legal experience that they can put to use when building you a strong case on your behalf. Fighting for the future of your family is not something that can be taken lightly, so call (559) 900-1263 and start working with us today.

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