Common Custody Arrangements for Divorced LGBT Couples

April 14, 2017

Due to relatively strong anti-discrimination laws in California, in general child custody cases are legally to be treated the same for LGBT couples as they are for heterosexual couples.

This right to equal treatment was solidified in 2005, when the California Supreme Court confirmed in a series of cases that LGBT families could not be treated differently under laws regarding child support, child custody, and visitation (K.M. v. E.G., Eliza B. v. Superior Court, etc).

However, due to the complexity of LGBT family law, custody cases are often more nuanced for LGBT couples. In this post, we’ll examine some of the most common custody arrangements.

Best interest of the child

In separation or divorce cases involving children, everything comes back to what is best for the children. Several factors that the court will consider include the welfare of the child, any history of abuse, the legal parent status, the amount of contact between parents and children, the use of controlled substances, and so forth.

Parentage

Before addressing custody, we must consider whether one or both of the partners is a legal parent to the children.

There are several ways to become a legal parent. One, of course, is being a biological parent, whether through surrogacy, or from a past relationship. Another is completing an adoption. A third is obtaining a parentage judgment, which occurs when the court formally acknowledges that the individual is a parent of the child. Often, LGBT couples will utilize more than one of these methods.

If both partners are legal parents: Officially, whether a parent is a biological or adoptive parent should have no impact on how they are treated in custody cases. For example, if a lesbian couple has a child in which one partner biologically conceived the child and the other completed a second-parent adoption, they would be treated equally as parents under the law.

If only one person is the legal parent: In California (though not in every state), even if one partner is not a legal parent to the child, if they have acted as the parent to that child, they may petition for custody rights upon a separation. This is based on the findings in Elisa B. v. Superior Court (2005), which stated that same-sex partner of a child’s biological parent “can be presumed parent under California Family Code § 7611(d) where she receives the child into her home and holds the child out as her own,” even if they are not married to the biological parent.

If this is the case in your family, you’ll need to show how you have acted as a de facto parent. For example, have you lived with the child? Have you acted as a caretaker, providing meals, transportation, and other responsibilities? Do you have a strong emotional connection?

Legal Custody

In essence, legal custody determines whether a parent is legally responsible for the child, and is entitled to make decisions for them. This could range from big decisions such as critical medical decisions to small things like signing your child’s field trip form. Legal custody also means that one is required to support the child financially.

Most common legal custody arrangement: joint legal custody. Frequently, parents will seek joint legal custody, meaning that they share legal responsibility, and make major decisions about the child together. If, like in the case mentioned above, only one partner is the legal parent, you will need to spell out clearly how the legal custody rights are being shared. It is best to consult a practiced attorney for this process.

Less commonly, one parent will petition for sole legal custody. In this case, the parent seeking sole custody must demonstrate why the other partner is unfit to be a parent. As always, the decision will come down the best interest of the child.

Physical Custody and Visitation

This aspect of custody determines where the children should live, and how much time each parent may spend with them.

This is heavily dependent on where each parent plans to live, and again, what is in the best interest of the child.

Most common arrangement: joint physical custody. There are many variations of joint custody, depending on several factors including where the children go to school, the location of each parent’s home, and so on. If the parents live relatively close together, they may split custody 50/50, where the children split their time equally at each home. The timing of when the children swap homes can have several arrangements. For example, they may change homes every 3 days, every other week, or every other month.

Alternatively, the children may primarily live with one parent (known as the “primary custodial parent”), and have specific visitation rights with the second parent. This is a common arrangement if the parents live further apart. For example, children may visit the parent every weekend, spend extended weekends and holidays with them, or perhaps spend summer break with them.

Less commonly, one parent may seek sole physical custody. As before, in this case, it must be demonstrated why the other parent is unfit to have physical custody of their children.

Negotiating child custody is a difficult experience for any family. Our attorneys can help ease this period of time, and assist in finding the best plan for you and your children.

Photo by Nick Herasimenka on Unsplash