LGBTQ Marriage: How You Can Protect Your Children

When same-sex marriage became legal, same-sex divorce also became legal. Divorce among same-sex couples is lower than the average but that is mainly because LGBTQ couples in long-term relationships were the first to marry when same-sex marriage was legalized. As more marriages occur, the statistics on divorce in the LGBTQ community are expected to approach the numbers of divorce in the general population. And many of these couples will have children, which means they will need to make difficult child custody, child support and parenting decisions. That’s not different from most divorces. What is different is that the issues that arise when same-sex parents divorce can be much more complicated.

The US Supreme Court landmark decision on Obergefell v. Hodges on June 26, 2015 ruled that there is a fundamental right to marry and required all 50 states and the District of Columbia to both license and recognize same-sex marriages under the 14th amendment. However, the courts are not equipped to deal with modern, complicated family relationships – and laws don’t reflect today’s family. When a married LGBTQ couple or unmarried same-sex partners share children, the parents need to be pro-active in protecting their parental rights and the rights of their children. Whether the couple stays married or separates, protecting the legal rights of both parents and the child should be their first priority.

  • Non-biological parents need legal authority to make healthcare decisions, even in an emergency situation.
  • Children’s inheritance rights need to be protected in case a non-biological parent dies without a will.
  • School field trips, health insurance coverage and other normal parental decisions can only be made by the legal parent.

Because state laws vary and you want to make sure the parents’ and child’s rights are protected wherever the family may travel or live, many believe it is important that the non-biological parent legally adopt the child, even if he or she was born during the marriage.

Best Interests of the Child

When minor children are involved in a divorce or a partnership dissolution, most courts will rule in the best interests of the child. But determining what is in the child’s best interest can vary from judge to judge. The laws have not caught up to the reality of the types of families that LGBTQ parents are forming and the courts are not equipped to deal with the unique circumstances of these families when a marriage is ending. One example is a 3-parent family where there is a biological mom who gave birth to the child, a non-bio mom who is an equal parent in all aspects of the child’s life and the sperm donor dad who is fully involved in the child’s life as well. Several years ago, I was interviewed about divorce equality by The New York Post, and what I said then still holds true:

“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.” 

Portability Factors

Another reason for LGBTQ families to make their own agreements is the fact that we live in a very mobile society. It is not unusual that after a couple legally dissolves their marriage, one person may move out of state. Child custody and support laws and guidelines vary from one jurisdiction to another. Federal law protects the right to same-sex marriage, but child custody laws differ from state to state and many LGBTQ couples are faced with different laws and rights dependent on where they live.

A properly negotiated parenting plan can protect you and your child, particularly if you are not the biological parent. If one or both parents travel or move to another state that does not have the same marriage equality laws as New York and you have a legal parenting plan that was incorporated into a court order, your rights and your child’s rights will be protected. The 1997 Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clarifies child custody case jurisdiction and recognizes that any custody order made in one state is valid in every state.

The decision of LGBTQ couples to divorce is as difficult as any other divorce, but these parents face different legal challenges. A parenting plan where both parents agree on and document custody, decision-making and parenting arrangements is the best option to protect both you and your child. If you are involved in a same-sex relationship with children, contact Vacca Law & Mediation to discuss how to create an agreement that works for your unique family.