Now that same sex marriage has been legal in New Jersey for a year and a half, some same sex marriages are bound to end in divorce much like their heterosexual counterparts. So, how will this pertain to child custody? It is hard to say. Since legal precedent is constantly changing, and lesbian and gay parental rights are a new category altogether, almost every state handles legal and physical custody and visitation differently. Here are few common scenarios and the possible outcomes to keep in mind.
Both Partners Are Legal Parents
If the child was born during your marriage, civil union or registered domestic partnership, some states may acknowledge a non-biological parent’s rights; especially if that parent established a parental relationship with the child. However, if the non-biological parent actually adopted the child as a second parent or stepparent, or the child is no biological relation to either parent, but was adopted by both, there is no doubt that each partner sustains equal legal parental rights.
If both parents have the same legal rights to the child, disputes are typically handled by the court in much the same manner that they are in a heterosexual divorce or separation. Judges take all facts into consideration and base their opinions upon which outcome is more likely to suit the best interests of the child.
Only One Partner Is The Legal Parent
There can be many reasons that only one partner is considered the legal parent of a co-parented child. Perhaps the legal parent did not agree to adoption, or the other biological parent is still in the picture. Some states do not recognize a parent/child relationship between a child and second parent at all, and many of these states do not offer second parent adoption as an option.
Unfortunately, this can mean that the second parent does not have the legal right to sue for custody or visitation. The only silver lining is that he or she is also deemed to not be financially responsible for the child, though most do not mind contributing in light of a possibility of visitation.
The Sole Legal Parent’s Options
The sole legal parent legally has the standing to prevent visitation with his or her ex, if he or she believes that person may be harmful to the child. However, one must keep in mind that an irreconcilable relationship or distaste for an ex are not valid reasons to keep him or her away from a child they helped to raise.
Sometimes the only reason a court will not recognize a partner’s parental rights to a child is because the parents could not legally marry (though they fully intended to) when the child was born or adopted. It is only fair that the legal parent consider the non-legal second parent’s rights as they would have been recognized should he or she have had to ability to marry him or her back then.
The Second Parent’s Options
If the second parent’s former partner is denying visitation, one must consider the precedent that has already been established in that couple’s state. If there has not yet been a preferred procedure established in cases like this, the second parent should consider becoming a “test case.” This means possibly establishing new case law to further his or her interests and the interests of others in the same situation, and fighting on to the appellate court, if necessary.
Remember, before making any decisions or bringing any action into court with regard to child custody in a same sex divorce, it is important to speak with a knowledgeable attorney who thoroughly understands this new area of family law.
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For more information or to schedule an appointment with an experienced New Jersey legal separation attorney, please contact us. We can help with custody arrangements and all other family law concerns.