Same-sex parents aren't immune to breakups. Yet, they may have difficulty deciding how to handle child custody and child support, particularly in cases where a surrogate was used. While you might think the courts would have processes in place for addressing these issues, child support and child custody for same-sex parents may still be relatively 'new' for some courts. In addition, child custody and child support for same-sex couples can be extra complicated because the courts have to consider all scenarios—from biological parents to surrogate parents, adoptive parents, and those who operate as parents—when making child support and child custody determinations.
State Laws Regarding Same-Sex Parents
While more states now recognize gay marriages and unions, not all courts have experience determining child support or child custody for same-sex parents following a breakup. In addition, child custody may present specific complications for gay parents. For example, say a gay or lesbian couple has lived in one state—which either recognizes gay marriage or civil unions for gay couples—but later separates and moves to a new state. They might assume that the new state will recognize their pre-existing custody agreement. Technically, the new state should absolutely honor the agreement, just as it would for a any other custody agreement created in another state. However, some states may be reluctant, particularly if the agreement involves removing a child from a biological parent and placing him/her with a non-biological parent or a caregiver who has no legal connection to the child.
Yet, exceptions do exist. For example, in the case of Lisa Miller and Janet Jenkins, custody was granted to the non-biological parent.
Child Support and Same-Sex Parents
Some courts have determined that a parent who agrees to start a family with a same-sex partner, with plans to raise the children together, should be held responsible for paying child support—regardless of whether the child was formally adopted by the non-biological parent.
In general, the courts will consider the initial intentions of each partner, as evidenced by factors such as:
- Each partner's attendance at doctor's appointment and Lamaze classes during pregnancy
- Whether both parents held the child out to their families as an extended member of the family
- Whether the child was legally adopted by one, or both, parents
Adoption and Same-Sex Parents
Some courts have decided that non-biological parents who do not adopt their partners' children are deemed "non-parents" in custody and visitation determinations. Therefore, non-biological parents in same-sex relationships should consider adopting the child to ensure an enduring, legal relationship with the child. In the event of a child custody battle, the court may consider an adoption to be evidence of a stronger legal connection between the non-biological parent and the child. In terms of adoption for same-sex partners, courts will consider:
- The consent of the biological parent
- The emotional connection to the child
- Financial support of the child
It's definitely a fact that some states are more liberal in making child custody and child support decisions for same-sex parents who breakup. Even though all courts should honor the custody and support orders determined by other states, states do have the option of challenging an order that originated in another state.
Same-sex parents who breakup may need to prepare themselves for an uphill court battle. However, in the end, both parents should commit to working together for the child's best interests.
Edited by Jennifer Wolf.