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A State of Flux: Determining Child Custody for Same-sex Couples

Undergoing divorce proceedings is a stressful time for any couple, particularly for those with children. Child custody is a sensitive issue for any separating couple but presents unusual complications for same-sex couples.While same-sex marriage has been legally allowed throughout the US since 2015, there are still some legal gray areas in determining child custody for divorcing same-sex couples. The continued evolution of laws regarding child custody means there’s little consistency for LGBT parents. This is why an out-of-court settlement is often easier than taking a same-sex couple’s custody dispute to court.

In case a court custody case is unavoidable, reliable divorce lawyers in Santa Fe, especially those that handle LGBT family law, can help you and your partner navigate the legalities of child custody in New Mexico.

Who’s the Legal Parent?

Legal status determines parentage. In fact, it can even trump biology. The names listed as parents on a child’s birth certificate are the only ones the law recognizes as legal parents. You and your partner can both be recognized as legal parents through any of the following:

  • The child is born when you and your partner are in a relationship that gives parental rights to the nonbiological parent (legally married, registered domestic partners, recognized civil union).
  • The nonadoptive or nonbiological parent adopts the child (as a second parent or as a stepparent).
  • You and your partner file for joint adoption of the child from the start.

LGBT parents who both have legal rights to their child will have their case handled like that of opposite-sex parents. Child-related disputes where only one parent in a same-sex relationship is recognized as having legal rights are more complicated. Courts will prioritize awarding custody to the legal parent, which puts the second, non-legal parent at a disadvantage.

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Limited Rights of the Second Parent

In many states, it doesn’t matter why either you or your partner isn’t listed as a legal parent. The fact of the matter is that second parents fighting for legal or physical custody have little to no rights to their child in many states, regardless of their familial bond or how long they raised and lived with the child. Obtaining visitation rights can be more difficult for second parents, as well.

The decision for custody is on a state-by-state and case by case basis, though. Some courts recognize the contributions of second parents to the family and intent to conceive and raise a child. Others also consider the strong relationship between the child and the second parent.

The Child’s Best Interests

Formal custody proceedings are initiated to ensure the children caught between a divorce would have the financial, social, and familial support they need from both parents. Custody decisions between two legal parents are based on the best interests of the child.

The same applies to same-sex divorce and custody cases. Both parties involved in a custody battle should aim for an amicable custody agreement for the sake of the child’s home life and growth. Although second parents may get the short end of the stick, there is still hope that a judge may rule the case in both you and your partner’s favor with a joint custody.

Couples who can’t reach a custody arrangement out-of-court can minimize the stress and pressures on their children through a faster child custody battle. Knowing the custody complications, you and your partner may face as a same-sex couple will help you prepare and speed up the proceedings.

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