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What does a same-sex divorce mean for custody of your kids?

On Behalf of | Apr 15, 2021 | Child Custody

A marriage between same-sex individuals now has the same legal protections as a marriage involving opposite-sex partners. Couples can marry, buy property together and enjoy all the other rights and privileges that come with marriage.

One of these rights is the right to get a divorce. Typically, the dissolution of your marriage requires two major steps. The first, universal step is the division of your property. The second step only applies to some couples and involves splitting up parental rights and responsibilities.

Not every couple has children, but every married couple with children that divorces will need to address custody. That includes same-sex couples, for whom the process can be more complex.

Why can custody differ in same-sex divorces?

Virginia, like many other states, requires that judges overseeing a divorce with minor children prioritize the best interest of the children in their decisions. The custody law is also written in a sex-neutral manner that gives equal consideration to each parent.

However, in an opposite-sex marriage, there is a presumption of paternity for the man. When a woman has a child while married, the state assumes her spouse is the father. The father doesn’t usually have to take any extra steps to protect his parental rights.

In a same-sex marriage, it’s possible that only one parent has a biological connection to the child. Whether a gay couple hired a surrogate to carry an embryo fertilized with one partner’s sperm or a lesbian couple chose to have one wife bring life into the world, it is common for only one parent to be directly related to the child.

Sometimes, if there is an adoption, neither parent has a biological relationship and only one is on the adoption paperwork even though both act like parents. Whether you are the non-biological parent or the spouse of someone who adopted a child that you did not adopt yourself, you could still ask for custody in a Virginia divorce.

A same-sex partner can assert their rights under the third-party rule

You don’t need to have a biological or formal adoptive relationship with the child for the courts to uphold your parental rights. You only need proof that you have filled a parental role and that your continued presence in the form of visitation or parenting time would benefit your child.

The courts can theoretically give visitation or parenting time to anyone with a meaningful relationship with the child. The lack of biological connection or formal adoption will not necessarily prevent you from sharing custody in a same-sex divorce in Virginia.



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