Why Custody Battles for LGBT Parents Are More Challenging—and How to Prepare

Considerations for LBGT
Custody Battles

For any couple, custody battles in divorce are distressing, complex, and at times, unpredictable. But for LGBT couples, the process is even more strenuous and difficult to navigate.

Why is this the case? Are court systems discriminating against LGBT parents?

Not necessarily. LGBT partnerships are still a relatively new construct in a legal system that’s been almost exclusively focused on two-parent, opposite gendered marriages when it comes to custody disputes. Most courts are out of sync when defining what
constitutes a partnership and how custody should be determined with LGBT partners, in large part because of inexperience and
inconsistent definitions. Laws vary dramatically at the state and local level, and to make matters worse, these laws are constantly changing. So where do most courts land, and what can you do mitigate the confusion here?

​Determining Parent Legality

Because same-sex couples can’t naturally have children on their own, the legal definition of who qualifies as a parent is more complex. There are circumstances where only one partner may be considered the legal parent. For example, one parent may have a biological child from a previous relationship, and their current partner may not have any legal right to parentage.

In cases where only one parent is considered legal, LGBT custody battles are relatively simple. In almost every conceivable circumstance, the legal parent retains full custody of the child, and the secondary, non-legal parent will not be granted visitation rights or any other means of shared custody. The secondary parent will also not be responsible for child support payments.

This doesn’t mean that it’s impossible to seek visitation rights as a secondary parent, or that it’s impossible to seek child support from a secondary parent, but it is significantly more difficult and less straightforward than it would be with a traditional divorce.

In many cases, both partners are considered legal parents. This is reflected in the following scenarios:
  • The child was born into a legally recognized marriage or domestic partnership, under circumstances in which the non-biological parent is recognized as a legal parent.
  • The child was officially adopted by both parents simultaneously.
  • The child was formally adopted by a non-biological parent in the partnership, or the parent has been conferred some other means of parentage.
In a divorce or dissolution where both parents are considered legal, things get more complicated. In most courts, the custody battle will be treated in mostly the same way that a traditional divorce’s custody battle would. Though cases vary, judges will look at a variety of factors to determine which guardian will be granted primary custody of the child, including personal relationships, employment, emotional health and stability, existing family, and of course, the child’s preference.
Lack of History

The biggest problem facing the LGBT community in divorce proceedings is the lack of legal history to set a precedent for future battles. For example, there haven’t been many cases of a secondary, non-legal parent seeking full custody of a child after the end of an LGBT partnership, so there’s no clear rubric for a judge to make a decision. It’s possible to forge a path forward by being the first example of a specific situation, but these novel cases tend to be drawn out and messy. This is unpleasant to go through, but may be worth it to win custody or visitation rights for a child you love but don’t legally guard.

Recommendations for LGBT Couples Facing a Custody Battle​

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If you’re a partner in an LGBT relationship looking at the prospect of a custody battle, here are some suggestions to make the process smoother:
  • Negotiate terms on your own. Courts are frustratingly complicated in this regard. Even if you have a solid, clear, and logical case demonstrating your rights to shared custody, the ambiguity of law in your area, or the lack of recognition of your relationship, may undermine your case. Accordingly, it’s far better and less painful to negotiate terms on your own. If you both want to visit and raise your child together, work out a deal that splits custody in a mutually agreeable way. If you think the secondary parent should pay child support, request it. Spend serious time negotiating and compromising on your own before you seek legal help; if you can come to a mutually agreeable situation, you can almost skip the courts altogether.
  • Do your research. It would be impossible to compile a comprehensive list of each state and region’s laws on same-sex partnerships—and useless, since they’re evolving so quickly. One of your best strategies is to simply do your research in advance. Find out how your state recognizes your partnership, whether one or both of you is considered the legal parent of the child, and look up any historical cases that may help you set accurate expectations of what’s to come. The more informed you are, the better you can plan ahead.
  • Avoid seeking split custody. Unless you’re both legal parents in a progressive state with historical examples, it’s unwise to seek split custody. Doing so will complicate the process, and your request is unlikely to be honored. Again, it’s better to establish a mutual, non-legal framework for each parent’s involvement in the child’s life.
  • Be willing to provide a “test case” if necessary. However, if you’re unable to reach a compromise, and it’s important for you to stay in your child’s life, don’t shy away from putting up a fight. A lack of historical cases will make things difficult—but not impossible. Somebody needs to present the first “test case” of this kind as an example for others to follow, so if it’s an important cause to you, pursue it.

If you’re interested in learning more about divorces or custody battles—no matter what type of partnership you’re in—be sure to contact our office. We’ve got the experts who can help you find an ideal path forward for you, your partner, and most importantly, your children.