Same-Sex Parent Child Custody and Support

One of the most complicated issues for divorcing same-sex couples revolves around custody. When same-sex couples adopt a child during their marriage, both are entitled to the same parental rights as opposite-sex couples. The main difference is that when same-sex couples divorce, the biological parent may enjoy more rights and often receive physical custody over the non-biological parent.

Child Support in Same-Sex Parent Divorce

The same-sex parent is entitled to the same rights as any opposite-sex parent. The California Supreme Court Case of Elisa B. v Superior Court (2005) 34 Cal.4th 108 extended the Family Code sections relating to child support to same-sex couples. The family law courts will take into consideration the income of both parents, as well as the amount of time that each parent spends with the child.

Discrimination Against Sexual Orientation is Illegal

Same-sex parent child custody laws have changed drastically over the last decade. Despite this, there may be judges who feel uncomfortable with homosexuality. It is important to know that when you register as a domestic partner with your partner, then you should be granted the same rights under the law as a married couple. This includes child custody, visitation and child support. California Family Code Section 297.5 states,

registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law as are granted and imposed upon spouses.

Sexual Orientation Cannot Be Used to Deny Custody

Due to California and Federal anti-discrimination laws, family courts typically will not consider a parent’s sexual orientation in making a child custody and visitation order. Therefore, sexual orientation should not be considered when making a “best interests of the child” determination. The exception happens when it can be shown that the sexual orientation of one of the parents adversely affects or harms the child.

Again, keep in mind that if a judge is uncomfortable with homosexuality, it may be challenging to convince the court that sexual orientation of a parent will not harm a child in any way. Therefore, it is advisable to seek the counsel of a local child custody lawyer when dealing with child custody issues.

Same-sex parent child custody cases can be sensitive and complicated matters for both parents. Without the assistance of an experienced divorce attorney, it can be very difficult to ensure that you are not being discriminated against and get a fair custody and support order.