Much like the LGBTQI+ community itself, custody arrangements for LGBTQI+ parents who are divorcing result in a variety of outcomes. Just like any custody determination, no two cases are the same. Each case is viewed through the lens of the best interests of the children, and since children are unique, their custodial arrangements are unique. However, an additional significant factor in LGBTQI+ cases is the analysis of how a child came to be in the family.
There are several routes that LGBTQI+ parents can take in order to have children. The parents may have their own biological children, adopt as single parents, or adopt as a married couple. Two of the parents may have birthed children using the same donor, so the children could be related.
Trying to work out custody in these situations can be tough, but there are two main questions to ask:
First, to whom is the child biologically related?
Second, does the other parent have a right to custody?
Legal parentage matters in LGBTQI+ divorces
The first issue is to determine if your child is related to you or your spouse, and also figure out if you or your spouse has a legal right to custody. For example, if you gave birth to a child with an ex-spouse and remarried, your partner may not have a legal right to custody after divorce. However, if they adopted your child during the marriage, they could.
Similarly, if you adopted a child on your own prior to marriage and your spouse did not move to adopt them as well, they may not have a legal right to custody.
That doesn’t necessarily mean that you can’t set up custody or keep the other parent in the child’s life. On the other side, if you aren’t related to the child at issue, but want to maintain a relationship with them, you may be able to petition to do so, too. There are different legal standards that apply, but our attorneys have navigated third party custody and visitations as well as represented members of the LBGTQI+ community.
Your child’s relationships matter
A good approach in LGBTQI+ divorces is to think about the child’s needs and to work out what would be best for them. They may benefit from having both parents in their life even if one is not technically their legal guardian or parent any longer.
These cases are complex. It’s helpful to learn more about your rights and to determine what laws apply to your specific custody case before attempting to work on it. The attorneys at Maddox & Gerock, P.C. are here to help guide you through this process.