Male gay couple with children resting
Male gay couple with children resting in bed at home

Child custody and co-parenting in separated LGBT families is a grey area. The issue lacks adequate precedence to assist the courts to base their judgments on.

Consequently, the law is complicated and hectic to navigate through in such matters. However, most courts use the same qualification used for separated heterosexuals’ families to grant custody to the most suitable parent. The court considers, the perspective of the well-being of the children, emotional, and practical standpoint of the most suitable parent.

Legal Parents

Legal parents are individuals who have the legal to have the custody of a child. They have the power to make decisions about the child’s education, well-being, and health. Legal parents are the legally-recognized parents of a child.

Additionally, it is the responsibility of the legal to support the child financially. In given states in the United States, people who do not qualify as legal parents do not have legal decision-making authority over a child. Such people are not granted the right even if they live with the kid and function as the kid’s parents.

Moreover, non-legal parents may have no authority to visitation or custody of the child when something happens to the legal parents. Therefore, non-legal parents cannot claim the child as a dependent for health insurance. The child also has no power to inherit from a non-legal parent or relative.

Legal parents share equal rights to seek the custody and support the children. As a result, both biological and adoptive parents have equal rights when it comes to determining the custody of children. For example, lesbian couples who have children through donor insemination and completes the second parent adoption, both parents are considered equal under the law. Therefore, if the lesbian couple were to separate, each will be equally entitled to the custody of the child. It is upon the court to determine who will be granted custody of the child based on the best interest of the kid. The court does not give any advantage to either of the parents because they are equal under the law.

In same-sex marriages, the court presumes both spouses are legal parents by the virtue that they are legally married and got the child through the union. Therefore, during a divorce, both parents remain legal parents. However, the courts have the power to terminate both or one of their parental rights.

Second Parent Adoption

The Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriages. However, LGBT individuals still do not enjoy the fruits of equality under the family law.  In most instances, LGBT non-biological parents establish a legal relationship with their children through “second-parent adoption.”

The legal process allows the co-parent to adopt their partner’s child without terminating the partner’s parental rights. The Second Parent Adoption does not consider marital status. The adoption grants the child, two legal parents. The law guarantees both the partners equal legal standing when it comes to a relationship with the child.

LGBT couples further have the opportunity to use the stepparent adoption process that is available to all married couples. The following states have allowed second parents adoption by unmarried same-sex couples include:

  • Alaska
  • Delaware
  • Florida
  • Iowa
  • Hawaii
  • Louisiana
  • Maryland
  • Minnesota
  • Oregon
  • Texas
  • West Virginia
  • Rhode Island
  • Washington

The Federal Constitution through the Full Faith and Credit Clause requires the states to recognize court orders. Adoptions are also considered as court orders thus legally binding to all states. United States recognizes final adoption by an LGBT parent. However, such adoptions are accepted to the extent if the laws of a given state could have allowed for the adoption to take place in their jurisdiction.

In the case of Embry v Ryan, a Florida Court of Appeal held that Florida is obligated to recognize second-parent adoption. The adoption was granted in Washington to the biological mother’s same-sex partner. The court further declared that the adoptive parent is entitled to all the responsibilities and rights of a legal parent under the laws of Florida.

Parentage Action

The parentage action is also referred to as parentage judgment, and it is found under the Uniform Parentage Act. Non-biological parents are advised to get a parentage judgment to protect their parental rights when they travel or move. Parentage judgment or adoption protects non-biological parents. The name on the birth certificate does not entirely safeguard the legal rights when challenged in a court. Therefore, the perfect documents to protect parental rights are adoption and parentage judgment.

Visitation or Custody

Legal parents have the right to custody or visitation. The privilege does not discriminate based on adaptive, biological, or other legal parents. All the parties are entitled to equal rights to seek the visitation or custody.

States that allow for non-biological and non-adoptive parents to be deemed to be legal parents protect same-sex partners in children cases. The same-sex partners who participate in the caretaking and maintenance of the child and develop a parent like a relationship, have the right to go to court seeking custody or visitation. Consequently, the right to custody and visitation is granted under “parent by estoppel” or “equitable parent.”

Additionally, most states have enacted statutes that grant de facto parents who assume parental roles in a child’s life the right to request for custody or visitation. The term “de facto” parents describes someone who assumes the full responsibilities of a parent. The conditions to qualify for a de facto parent in the District of Columbia include:

  • Lived with the child since adoption or birth
  • Lived with the child for ten months out of the last year
  • Formation of a strong emotional bond with the child through the encouragement of the other parent

Parenting Agreement

LGBT couples who are unmarried during the birth of their children and live in states that do not permit parentage judgment or second parent adoption are required to draft a parenting agreement.

The agreement does not qualify one to be a legal parent. However, such agreements may be enforceable in court and allow people to seek custody or visitation. The agreement should clearly state the couple’s intention to continue co-parenting during the dissolution of the relationship.