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What happens with child custody when same-sex marriages end?


Virginia state laws remain complex regarding child custody matters in same-sex divorce.

Marriage-equality laws were a huge step forward for the rights of same-sex couples. The marriage equality ruling by the U.S. Supreme Court resulted in much celebration and, understandably, a focus in the media on new same-sex unions. Legal experts also believe that, in addition to allowing same-sex marriage nationwide, the Supreme Court’s decision paves the way to discuss adoption, custody and other parental rights.

“This will have tremendous impact on family law in particular,” said Sarah Warbelow, the top lawyer for the Human Rights Campaign in Washington. “This will be a tool to help us begin to eradicate those instances of discrimination.”

Custody laws have not caught up to marriage equality

While federal laws have changed in favor of marriage for same-sex couples, related laws for adoption, custody and support will be slow to catch up. This will cause considerable uncertainty for same-sex couples with children. Do non-biological parents have custody rights? And how will custody, insurance coverage and other matters be determined by the courts?

Parental rights are particularly pertinent for same-sex couples, as they are more likely to have non-biological children. According to a legal brief filed by demographer Gary Gates of the Williams Institute at UCLA, gay and lesbian couples are three times more likely to be raising an adopted or foster child.

The problem with “presumed parenthood”

In a heterosexual marriage, the husband is presumed to be the parent of the children regardless of whether he actually fathered them or not. But this idea of presumed parenthood might not apply to non-biological parents in same-sex unions. As a result, it can be easier for a divorcing biological parent to separate his or her ex from the children.

Additionally, there are many situations pertaining to adoption in which both same-sex parents are not biologically linked to the child. This adds further complications to custody determinations, as neither party has literal or presumed parenthood. And, as mentioned previously, adoption laws also have yet to align with marriage equality.

Current options for custody in Virginia

It is difficult to estimate when custody laws will change to better protect same-sex couples and reflect marriage equality rights. In the meantime, navigating the legal landscape regarding parental rights can be tricky, as Virginia courts have historically ruled in favor of biological parents in same-sex custody cases. Ultimately, as in every state, the courts will rule based on what they consider the best interests of the children.

Typically, a divorcing same-sex couple’s best option is to file a court order for joint custody. Under current laws, this can mean the following:

•· Joint legal custody – Both parents retain responsibility for the care and educational decisions regarding a child, regardless of where that child lives or spends the majority of his or her time.

•· Joint physical custody – Parents share physical custody and care of a child, usually alternating weeks, months or another arrangement determined by a parenting plan.

Additionally, non-biological parents should check their health insurance plans to see if his or her policy covers ex stepchildren.

Legal help may be needed to obtain favorable results

The current laws for same-sex couples makes obtaining knowledgeable and skilled legal representation even more vital. Family law attorneys must work with the courts to resolve the complexities of same-sex divorce, especially pertaining to custody and other issues with children.

If you and your spouse are ending a same-sex marriage or other union, it is important to obtain advice and guidance from an experienced lawyer. Even if you and your ex are amicable and cooperative about dissolving your partnership, it is important to ensure your parental rights are protected. At Thomas R. Breeden, P.C., we can provide the legal representation you need.