An Advocate In Family Law Cases

Custody challenges that can arise in a same-sex divorce

On Behalf of | Feb 2, 2025 | Same Sex Family Law

Same-sex marriage has been legal in California for just over a decade. Therefore, family courts have only seen a limited number of same-sex divorces thus far. However, as more same-sex couples marry, the number of same-sex divorces increases inevitably as well.

Same-sex couples considering divorce may already realize that their family law matters are subject to the same basic statutes that apply when heterosexual couples divorce. Of course, there can be differences in circumstances that lead to more challenging legal issues for same-sex couples.

In scenarios where there are minor children in the family, there may be uncertainty about custody rights. What do parents contemplating same-sex divorce or responding to a spouse’s filing in California need to know about custody rules?

One spouse may need to take extra steps

When a woman in a heterosexual marriage has a child, there is a presumption of paternity. Her husband’s name automatically goes on the birth certificate. He has automatic parental rights and can ask for custody if they divorce.

There is a similar presumption of parentage in a same-sex marriage. If a woman in a same-sex marriage gives birth, the state can include her spouse on the birth certificate as the other parent of the child.

Things become more complicated if the child isn’t the biological child of one spouse or was born before the marriage. If one of the spouses enters their marriage with a child from a previous relationship or a child whom they adopted, there is no presumption of shared parentage extended to their spouse if they divorce.

The parent without a formal legal relationship or biological connection to the child must legally establish parentage. Typically, that process involves adopting. If spouses cooperate to have a child using a surrogate gestational carrier or if they adopt during the marriage, they may both already have parental rights.

Otherwise, one parent may have to adopt during the marriage to establish the right to seek visitation or shared custody. Provided that a parent has established a formal legal relationship with their child, a same-sex parent has the same basic parental rights and responsibilities as any heterosexual parent would. In scenarios where a parent has not taken steps to protect their legal rights, the situation could be more complicated.

Those preparing for a same-sex divorce may need help reviewing their circumstances to plan the best path forward. Custody matters can sometimes be more complicated in a same-sex divorce scenario.