Although federal law has allowed for same-sex marriage across the nation, state laws on same-sex divorce are still trying to catch up. Just as heterosexual couples are prone to divorce, so are LGBTQ couples. Divorce is already messy enough under any circumstance and even more so when children are involved. Adding in the same-sex factor can complicate things even further.
One of the most affected areas is child custody. With biological parents, it is easier to establish paternity and parental relationships. With same-sex parents, it can be more challenging due to assisted reproduction and other birth situations. Custody will come down to the children’s background and legal relationships with each parent.
Children of prior relationships
If you have children from previous relationships, your partner has no legal rights to them unless he or she adopted them. If adoption happened, then that legal relationship will play a role in the custody decision.
Whether one of you is the biological parent or neither is, adoption by any parent grants legal rights to that person. Custody will likely follow traditional rules of dividing parenting time.
This is where a divorce case can get really complex and unjust due to outdated laws, inapplicable legal traditions and judicial inexperience with these matters. The court will look at factors such as who is the biological parent, who gave birth to the child and whose name is on the birth certificate. Unfortunately, fulfilling parental duties is not enough to have claim to custody. Biological and legal relationships trump emotional bonds under current Florida law, as the 2017 case of Castellat v. Pereira shows.
What you can do
The best thing to do in any of these situations is stay out of court. Put the children’s well-being first and try to work out a custody agreement with your partner through mediation or negotiation. Deciding on the terms yourselves gives you more control, lessens the emotional effects on your children and makes it likelier that each parent will follow the divorce order.