Navigating Visitation Rights for Gay Families

Since having children for lesbian, gay, bisexual and queer families can take a variety of forms, setting up visitation rights can at times be less-than-straightforward. For transgender folks, the laws are even less clear.

Given the risks and complexities of this arena, we highly recommend utilizing an experienced attorney. The Gay Family Law Center, based in Los Angeles, specializes in navigating this complex legal landscape and ensuring a positive outcome for your LGBT family, grounded in the best interest for your child.

What are visitation rights?

When a couple with children separates or divorces, they must make arrangements for how to manage ongoing parenting responsibilities. Visitation rights are part of what’s known as a parenting agreement, a legal tool that spells out where the child will live, how they will be raised, how decisions for the child are made, and more.

Though both custody and visitation rights are both included in the parenting agreement, they are not the same thing. Custody determines who has legal rights over the child. Usually, custody is shared when there are two parents, though at times it may be in the best interest of the child for one parent to have sole custody. Though many aim for the ideal of splitting custody and time with their child 50/50, in many cases this is neither practical nor possible. The parents may live far apart, or they may have challenging work schedules, for example. This may mean that one person is named the “primary custodial parent,” where the child will spend more time living with that parent. If this is the case, the other parent will have visitation rights spelled out which clarify when the child will spend time with them.

Why are visitation rights important to the LGBT community?

Since many LGBT couples use surrogacy, sperm donation, or adoption, it is likely that one or both parents will be biologically unrelated to the child. Non-biological parents need to legally establish parentage to be treated the same as biological parents under the law. This often occurs through one of several types of legal adoption. In the case of visitation rights, legal parentage will play a major role.

If you are not a biological parent and you did not establish legal parentage, however, you may still have options. As we explained in a previous post, California laws take into account that you may have acted as a de facto parent, and it may still be in the best interest of the child for you to maintain a role as a parent after separation or divorce.

This is often not the case in other states however. That said, due to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), if you have already created a parenting plan before moving out of state, it must be recognized throughout the country.

Additionally, discrimination against LGBT folks unfortunately still occurs in the courts with regards to custody and visitation rights, even though this is technically illegal in most cases. Though we’ve come a long way, bias still exists.

For these reasons, it’s particularly crucial for LGBT folks going through divorce or separation to have a strong parenting plan that clearly spells out visitation rights.

What are common visitation arrangements?

For parents that live relatively close together, common arrangements include:

  • Overnight weekends, 1-4 times per month
  • 1-3 weekday evenings per week, which may be included with some weekend overnights.
  • Division of holidays and birthdays.

For parents that live long distances apart, common arrangements include:

  • Long-term visits (1-3 months) during the summer.
  • 1-2 week visits during some (but likely not all) school breaks, such as winter holidays or spring break.
  • Special occasion visits, such as some (but likely not all) birthdays and vacations.

What about transgender parents?

While the courts have been relatively clear that lesbian, gay, and bisexual parents are to be legally treated the same as heterosexual parents, little has been legally determined regarding transgender parents.

However, in the 1996 case Mayfield v. Mayfield, the court ruled that gender identity did not affect a person’s ability to be a fit and loving parent. Yet, other cases have unfortunately ruled otherwise.

As it stands today, the legal landscape is ambiguous. If you are a transgender parent, we highly recommend engaging an experienced LGBT family law attorney to ensure that you are safeguarded as much as possible from discrimination.

At the Gay Family Law Center in Los Angeles, we strongly believe that transgender individuals should absolutely not be discriminated against. There is no evidence that being transgender has any negative effect on a child’s well-being and happiness.

With this in mind, we will work with you to design LGBT visitation rights that are based, as always, in the best interest of your child. Contact us to get started.