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Child Custody Issues with Same Sex Couples

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Forming an important and lasting bond with a child through direct involvement with the child’s daily life is not limited to the child’s legally-recognized parents. This influence may be exerted by any present and caring adult, and in the context of same-sex relationships, is not an uncommon arrangement. While many same-sex couples are now more aware of the legal pitfalls of failing to formalize parentage for the non-biological partner, a significant number are still in a legal no-man’s-land if the relationship ends and the biological parents decide to cut off access to the child. The child custody rights of parents in same-sex relationships is an area of the law that is still developing, and thus, predicting the likely outcome of a particular case is difficult. However, there has been some progress since same-sex marriage was legalized in 2015, which gives some indication of where this issue is heading. A discussion of how courts generally view a parent’s custody rights, as well as recent specific treatment of child custody issues in same-sex relationships, will follow below.

Who Is a Parent?

The only individuals immediately granted full parental rights are mothers who give birth, unless in a surrogate situation, and married men. The men are legally presumed to be the biological father of the child, and automatically receive full parental rights and obligations. All other individuals, unmarried fathers and partners, must take extra steps to gain legal recognition as a parent. Unmarried biological fathers can establish paternity through an administrative or court process to assume parental rights, but partners not biologically related to the child must take the extra step of formally adopting the child. Before the legalization of same-sex marriage, partners had to go through the long and complicated second parent adoption process to ensure the law would recognize a child as theirs. However, now married same-sex couples can opt for the much more streamlined step-parent adoption process to ensure both parties have equal rights to the child.

Major complications are created, though, when an adoption is not made, and a same-sex partner wants to sue for custody rights upon divorce or separation.

Custody Rights for Same-Sex Partners

Judges are still somewhat reluctant to grant individuals with no formal or biological connection to a child any custody rights, which means the child’s legal parent will likely be free to deny access or contact at will. Further, partners who had the option of adopting, but chose not to do so, will likely be viewed negatively by the court. Thus, same-sex partners are likely to viewed as third parties in child custody matters, which excludes them from asserting any parental rights. Recent decisions by the Florida Supreme Court have held a legal parent’s authority to decide who may have access to his/her child to be a fundamental privacy right that will trump a third party’s inferior rights to seek time-sharing privileges or decision-making authority. Most of the cases courts decided up to this point include children born before same-sex marriage became legal, and it remains to be seen how courts will handle child custody when these parents are legally married. Questions about custody matters should be directed to an experienced family law attorney who can fully assess the parent’s legal rights and the best interests of the child, central issues in these cases.

Contact a Florida Family Law Attorney

Sorting out child custody arrangements following divorce is never easy, but worries about the right to even ask for time with your child is a critical issue that needs immediate and thorough attention by an experienced family law attorney. The Orlando attorneys at the law firm of Goodblatt ∙ Leo know how to approach this issue to get you the best possible outcome. Contact us at (407) 228-7007 to learn more about their services.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.011.html

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