Child Custody and Support for Same-Sex Parents

When a same-sex couple with children decides to dissolve their relationship, it can be complicated to sort out the resulting issues of custody and child support. Our law firm is friendly to the LGBT group. We will use our expertise to help to resolve your issues.

Married Couples

After NY state legalized a same-sex couple’s right to marry, more and more LGBT couples got married. For instance, in determining the child custody, the law give more protections to the biological parents of the child.  If a same-sex couple has chosen to marry and has children after marriage, state courts will view each biological parent as having visitation and custody rights to any children born during the marriage. If one of the same- sex couple is not the biological parent, he/she may be put in a disadvantage. 

NY state court put the best interests of a child first when determining these arrangements, and recognize that children generally benefit from a relationship with both parents. The parent who is not awarded custody will have the rights to visit the child and obligation to pay the support. 

However, the situation can be more complicated if one parent has a biological relationship to the child and the other parent married the biological parent after the child was born. In that case, the non-biological parent must have taken steps to adopt the child or obtain a parentage judgment in order to have custody or visitation rights. 

Unmarried Couples

It is a little more complicated if the same-sex couple has no marriage certificate. A biological parent in the context of an unmarried same-sex couple has presumptive custody rights. Most courts will find a second parent (or non-biological parent) has no legal rights to raise or make important decisions about a child if he or she has not adopted a child and has not obtained a parentage judgment. In some cases, the court may not even give the second parent standing to sue for visitation or custody, regarding the second parent as a “third party.”

The law may permit a second parent to have visitation if that parent has played an essential role in raising the child. However, a second parent that has adopted a child or obtained a parentage judgment is on equal footing with a biological parent and can be given custody rights and support rights, depending on the best interests of the child and other factors. 

Parenting Agreements

Unmarried same-sex couples may be able to protect themselves and their children by retaining an attorney to draft a parenting agreement. This is an agreement that states that even though only one of the partners might be the legal parent of the child or children, both partners consider themselves to be the parents. In the agreement, the parents should acknowledge their rights and responsibilities, and include a statement of intent to continue co-parenting even after a relationship ends. It can also be helpful for the agreement to address financial issues, such as child support, and costs of raising a child. A legal parent should express intention to allow the second parent visitation rights in case the relationship ends. Even with a written parenting agreement, there is no guarantee of a particular custody outcome.