When the U.S. Supreme Court legalized same-sex marriage in June 2015, it was a victory for same-sex couples and families seeking equal recognition under the law. It also inevitably opened the door to same-sex divorces. These have given rise to new and complicated legal issues being addressed in a patchwork of case law in state courts.
While many property disputes that commonly arise in divorce (division of assets, allocation of debt, alimony and spousal support payments) are identical, legal issues pertaining to child custody in same-sex divorces have not been so clear-cut.
Child custody laws in many states generally allow for parental rights to biological parents or those who have secured a legal adoption. These laws are now being challenged because they fail to adequately address the rights of parents in a same-sex household.
Many children of same-sex relationships are conceived with the use of assisted reproductive technologies (surrogacy, in vitro fertilization or artificial insemination). This means only one of the spouses is a biological parent. If the other did not legally adopt the child, he or she may be left without child custody rights upon a divorce.
Complicating matters is the difficulty many same-sex parents face in adopting children, particularly in states with conservative or restrictive adoption laws. How are courts in such states addressing the problem of custody rights for divorcing same-sex couples?
Cases in Arizona and Mississippi
In Arizona, a woman has made a last-ditch attempt to bring her case to the U.S. Supreme Court to prevent her former wife from exercising custody rights with the child to whom she gave birth during their marriage. The Tucson Daily Star reports her ex-wife obtained parenting rights during their divorce using Arizona’s paternity presumption. Under Arizona law, a child born to a married woman within ten months of a legal marriage is presumed to be the child of the woman’s husband. Because the two women were legally married at the time the child was conceived through artificial insemination, the non-biological mother argued that she was entitled to a legal presumption of paternity. The Arizona Supreme Court agreed. Now, her ex-wife (who is the biological parent of the child) has asked the U.S. Supreme Court to review. The Court has not yet decided whether it will hear the case.
In Jackson, Mississippi, another woman had less success securing child custody rights at the time of her same-sex divorce. According to U.S. News and World Report, the divorce trial court judge determined that the child “could not have three parents,” and the non-biological mother was not entitled to a paternity judgment. She was awarded limited visitation and ordered to pay child support. She is appealing the paternity decision to the Mississippi Supreme Court, arguing the decision discriminates against her. She seeks a legal judgment of paternity in the hopes she may someday gain equal parenting rights as her former wife (the child’s biological mother).
It is difficult to predict where New Jersey may end up in this new and developing area of law. If you are having difficult establishing custody rights during a same-sex divorce, it is important to consult with a Monmouth County child custody attorney as soon as possible. Outdated custody laws that solely recognize biological parents are not always suited to the needs of same-sex couples. These parents to seek legal advice to protect their parental rights.
If you are a New Jersey parent with questions about custody issues in same-sex divorce., contact the Monmouth County child custody attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.
Additional Resources: Mississippi Woman Seeks Parental Rights in Same-Sex Divorce, by Jeff Amy, U.S. News and World Report, November 29, 2017.
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