Since 2015 case of Obergefell v. Hodges, same-sex marriage has become legal in all 50 states, but same-sex parenting can still be very challenging. The law is still catching up to reality, and parents in same-sex relationships need to be careful.
Who are the legal parents?
The law of “parentage” is largely built on the assumption that each child has one mother and one father. These two parents would typically have virtually unlimited authority to parent the child however they see fit (as long as they were not abusive). The law has started to adapt to same-sex couples, but there are still many same-sex couples raising children without the legal status as parents.
For example, in many lesbian couples the child’s birth mom is the child’s legal mother and the child also has a biological father. The mother’s lesbian partner, the child’s step mother, may have no actual parental rights even though she considers herself an equal parent.
When the couple splits up, the non-birth mother may actually be treated as essentially a stranger to the child under the law. That is why if you consider yourself a parent to a child you should consider going through the formal process to adopt that child.
If both partners are a legal parent, custody is relatively easy
The best case scenario for child custody and same-sex parents is that each partner is a legal parent. That can happen if the child was born to the couple in a state that grants parentage to each partner when the baby is born. It can also happen if both partners legally adopt the child.
This can be further simplified if the two parents in the same-sex couple are the only one with rights, meaning there is no other biological parent involved.
In this situation, splitting custody at divorce is basically the same as it would be for straight couples. Each legal parent has equal rights, and the court will try to find a custody arrangement that looks out for the best interests of the child while giving each parent a chance to spend time with the child.
The court should not, for example, favor the biological mom in a lesbian couple if each of the lesbian partners is a legal parent.
It gets complicated if one partner is not a legal parent
The worst case scenario is a situation where one of the same-sex partners that has been acting as a parent is not actually legally a parent. In most states and situations, the non-parent partner will have zero legal rights.
The partner that is the legal parent could basically freely choose if his or her ex-spouse will get any custody or visitation.
This is slowly changing, and more states are giving some rights in this situation.
If not, the second parent needs to establish some legal right to see the child.
The options may be limited. Some states allow someone like a parenting same-sex partner to seek visitation rights. That is usually far less than the custody rights a parent would get. In some situations, seeking legal parentage might be an option.
For example, some gay men have a biological child with a surrogate through a process that may use either man’s sperm. In that case, one of the men may not have established legal parentage but might actually be the biological father.