LGBT Parenting Agreements in the Case of Divorce

Separations and divorces are never easy. But a thorough parenting plan can help ensure that decisions during this stressful time are made in the best interest of the children in your family.

What is a parenting plan?

In essence, a parenting plan is a negotiation tool that spells out the rights and responsibilities of each parent over their children in the case of separation or divorce. It can be used alone if the decision is amicable. If conflicts arise, a court order may be a necessary tool used in conjunction.

In addition to items such as visitation and physical and legal custody, as we covered in an earlier blog post, a parenting plan will likely go into specific details of the child’s daily life. It’s meant to act as a guide to ease the transition for the child, whether it be to co-parenting, or whether one parent will take sole responsibility. Some items you may cover include:

• If and how the child should follow a certain religion
• Which holidays celebrated and with whom
• Parenting technique preferences (Do the children earn an allowance? Are children grounded if they misbehave?)
• Clarification of decision-making power (Can the child travel? What happens if they need to get surgery?)
• Health insurance details
• How costs are shared
• Property division (Which of the child’s belongings will stay at which house? Will they have a dedicated room? A car?)
• Which school will be attended

How does legal parentage come into play?

It is often the case in LGBT families that one or both parents are not biologically related to the child.

It is critical that the non-biological parent(s) establish legal parentage as early as possible. This is true whether you used a sperm donor, a surrogate, or if you adopt. Should the unthinkable happen, and the family split up, this will help ensure that a fair decision is made regarding issues such as custody and visitation. Read our earlier post on LGBT custody for a deeper insight.

If you haven’t established legal parentage and you need to create a parenting plan, however, you still have several options. Contact our attorneys to learn more.

Will I be discriminated against in court?

Earlier this year, the Washington State Supreme Court found that LGBT discrimination has no place in the courtroom when determining parenting plans. As the ACLU reports, the case arose when a mother filed for divorce from her husband, coming out as lesbian. Despite having been a dedicated stay-at-home mother, she was denied parental rights due to her sexual orientation. The Washington State Supreme Court found that this violated the mother’s First Amendment rights.

Though this case took place in Washington, California law shares similar anti-discriminatory foundations. In addition, the ruling will likely impact case law, meaning that other states that face similar situations may rule similarly.

What if I move out of state?

If you travel or move out of state, even one where LGBT rights laws are weaker, you and your child will be protected if you have already created your parenting plan.

This is due to The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which states that any parenting plan made in one state is valid in every state.

However, if there is any question about the legal parentage of an individual, and a parenting plan needs to be changed down the road, this could offer a legal weakness. Therefore, we again urge you to ensure legal parentage if you are not the biological parent.

That said, if you have not created your parenting plan and move out of state, you may face further barriers, particularly if the state has weaker anti-discrimination laws as mentioned above.

Closing

Though separations and divorces are difficult, a strong parenting plan can give you peace of mind, knowing that your child is well cared-for and legally protected. They are particularly important for the LGBT community, and we encourage you to contact us to speak with an experienced attorney.