Unlike “traditional” couples, the courts are still learning how to litigate same-sex child custody cases. This puts lesbian and gay couples under severe pressure to work out child custody before it goes in front of the judge, as neither party may be happy with the final decision. Unfortunately, it will probably take more same-sex divorces for the court system to become better when deciding these cases.
Something each party should realize is that if you cannot come to some type of agreement, one of the first decisions the court will make is to order some type of mediation. So, why let it get to that point when you can try to work out the details on your own? Even if it takes going to some type of therapy, you can work together to find an arrangement that will work for both of you.
Generally, we see two different custody situation in same-sex custody battles:
- One parent has legal custody
- Parents share legal custody
One Parent has Legal Custody
This can be because the parent had the child prior to this relationship or only one parent becomes the legal guardian in a case of adoption (some states still do not recognize a same-sex relationship and will only grant custody to one parent). This is the more difficult of the two situations because even though only one parent has legal custody, both may have played an active role in raising the child.
As the second parent, you face some difficult challenges:
- What are the laws in your state for visitation of same-sex couples?
- There may be no laws in place and your case may be instrumental in forging new law.
As the parent that has custody, ask yourself if you are refusing visitation rights out of animosity or do you actually believe the other parent puts your child at risk? Your shattered relationship is not a reason to refuse visitation and it may actually cause problems between you and your child by refusing visitation, especially if the other parent played an active role.
Shared Legal Custody
In most cases today, custody in this type of case is handled just as it would be in a traditional marriage. Both parents are encouraged to work out a reasonable visitation schedule that meets the child’s needs as well as each other’s works schedules to avoid any conflict.
Some things to keep in mind when trying to develop a visitation schedule:
- Children’s school schedule
- After school activities
- Sports
- Parental work schedules
- Holiday and special events
Keep in mind, the court will want to disrupt the child’s life as little as possible, so the parent already residing in close proximity to the current school may have an advantage in the custody battle. If you are considering leaving the home, this may affect where you choose to live in the future if you want to share joint custody.
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