Divorce Equality: LGBT Families Face Custody Challenges in Traditional Legal System

Before marriage was made available to every American, same-sex couples struggled with issues that married couples could take for granted – like hospital visitation rights, after-death services and inheritance rights.

In order to achieve that same peace of mind that married couples enjoy, gays and lesbians came up with some brilliant solutions to bridge the dire straits in which they found themselves. In New York City, the government began a Domestic Partnership registry which granted hospital visitation, health insurance coverage and the inheritance of rent-controlled apartments, among other things. But because those provisions only applied to government-run agencies, lesbians and gays took matters into their own hands to protect themselves and their partners in the private sector through the use of wills, healthcare proxies and burial instructions.

Fast forward to today and we see the need for similar forward-thinking contracts among the LGBT community when it comes to child custody. I was featured in a New York Post article that touched on this same issue recently and highlighted various complicated custody situations faced by LGBT couples.

As the New York Post article explained:

A gay male couple donated sperm from one of the men to a lesbian couple, resulting in a baby. Each couple bought identical New York apartments and decorated them exactly the same. The intention was to split the year into four quarters and rotate the primary parenting duties amongst themselves.

Unfortunately this creative and ambitious setup proved too difficult to manage. After nine months, the arrangement was called off and the parties found themselves in the court system, whose slow pace of adapting to new things often results in a disconnect with the real world. As this foursome of concerned parties found out, the same is true when complicated custody cases present themselves in front of a judge.

For another example, take the case of this hypothetical lesbian couple:   

The biological mother, Mom #1, using sperm donated from a friend, gives birth to a healthy baby. She and her lesbian partner marry shortly afterwards and raise the baby together. Mom #1 gives birth to another child during the marriage, but Mom #2 never officially adopts the first child. The couple decides to divorce and although Mom #2 now has legal parental rights only to the second child, she claims that the years she spent raising the first child make her a “psychological parent.” Further complicating the case, the sperm donor asserts a parental claim to the first child based on genetics.

If these parents are smart, they will do their best to keep the case out of court because the judge they are assigned may have insufficient guidance about how to conduct a custody proceeding for two children and three parents – and that ruling (whatever it may be) may be different than another judge’s ruling in a courtroom down the hall.

Parties of a same-sex divorce are realizing that they are rolling the dice when they let the court decide their parenting plan. As I stated in the Post article “People who are being very creative with how they bring children into the world are being creative when these relationships end. They don’t want to hand it over to a judge.”

And the more these families plan along the way, the less contentious their break up will be:   

  • Before the Marriage: A prenuptial agreement can specify nearly anything, including parenting plans for children already born.
  • During the Marriage: A postnuptial agreement can carry the same weight as a prenuptial agreement. This is also when the non-biological parent should formally adopt a child born prior to the marriage (being married to the biological parent makes adoption slightly easier).
  • During Divorce: Avoid the uncertainty of the courts and save money by agreeing to an amicable divorce. In a private setting like mediation or the collaborative process, all creative options are on the table.

I encourage same-sex couples to think ahead. Remember that after the long fight for Marriage Equality and the massive overhaul of legal rights that have followed, the court system still needs to catch up. While the court system slowly evolves to suit the needs of all parents, same-sex couples can reach creative resolutions through mediation and collaborative law that meet the specific needs of their family.

Andrea Vacca

570 Lexington Avenue, Suite 1600
New York, NY 10022
avacca@vaccalaw.com