Child Custody Issues in a Same Sex Divorce

Divorce for same-sex couples is, in many ways, no different than divorce for any other couple. Our clients need to divide their marital property and resolve other issues, such as alimony.

However, child custody issues can become complicated for some same-sex couples. There might be questions about whether you established a legal relationship with your child or whether you have rights to visitation. These issues arise more frequently for same-sex couples. Contact an experienced attorney for assistance untangling these legal issues.

How Florida Courts Analyze Child Custody in Same Sex Divorce

Generally, child custody is decided using the best interests of the child standard laid out in the relevant Florida statute. This test looks at any relevant factor, including each parent’s relationship with the child(ren), to that point. Other considerations include the stability of each parent’s home and any history of domestic violence.

However, with same-sex couples, there is sometimes a question of who qualifies as a “parent.” For example, one spouse might be biologically related to the child(ren) because they conceived them in a prior relationship. Sometimes the second spouse does not adopt the child, possibly because the other biological parent does not want to surrender their parental rights. In effect, only one spouse in the same-sex marriage is a legal parent of the child(ren).

That frightening situation is a reality for many people ending a same-sex marriage. If you are not a legal parent, you simply lack legally enforceable rights to see the children after divorce. A Florida court cannot simply create a parental relationship because of the emotional bonds you share with the child(ren).

Another layer of complexity comes from the use of assisted reproductive technology (ART) to conceive children. A Florida statute does state that a child born in wedlock who was conceived using ART is presumed to be the child of the “husband and wife.” This law should apply equally to same-sex couples.

However, the statute requires the parents’ consent in writing to the ART. Some couples use informal arrangements, so there could be legal questions regarding parentage due to the lack of a signed writing.

Some disputes also arise in the context of one parent seeking to move with the child(ren). Although you might want to block the move, you may lack standing because you are not a legal parent.

Contact a Miami Child Custody Lawyer

Same-sex marriages pose unique legal issues, and anyone who is ending their marriage should hire a lawyer with the proper background in relevant legal principles. Hamilton O’Neill stays abreast of the most recent court decisions in this fast-moving area of law.

Reach out to our office today if you are considering divorce or have received divorce papers. A Miami child custody lawyer can analyze any issues and answer your questions.  We know the importance of maintaining a relationship with your children. Let us review how a judge will likely analyze the details of your case. Call us today at 305-371-3788 to schedule a consultation.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0742/Sections/0742.11.html