That national legalization of same-sex marriages has made life a lot smoother for a lot of families, granting legal protections to couples and parents that had long been lacking.
Unfortunately, the patchwork of laws that exist in different states in regards to child custody and second-parent adoption are still complicated legal arenas that are constantly changing. There’s also a legacy of cases that are affected by the laws that were in place at the time the same-sex relationships started or ended. Many of those cases involve the rights of same-sex parents to visitation rights and custody over children to whom they are not biologically related.
For example, one case that’s been working its way through the Michigan courts involves a lesbian couple who had two children together. After a 15-year relationship, the partners broke up — before same-sex unions were legalized nationally. That meant that only the children’s birth mother was legally related to the couple’s children.
Now that the relationship has turned acrimonious, the former partners are locked in a battle where the birth mother is seeking to block the only other parent the children have ever known from visiting them.
Family law courts nationally are groaning under the weight of cases like these, with attorneys admitting that the laws haven’t kept up with the times, and there’s new legal ground being broken all the time.
Many times, existing same-sex relationships are still affected by the discrimination imposed on those couples in previous years. For example, some couples participated in church-sanctioned weddings that didn’t have legal recognition under Michigan law at the time. If you split up with your spouse prior to obtaining a state-sanctioned certificate of marriage, the law could treat you very differently than a couple who obtained an out-of-state marriage somewhere it was legal at the time.
In other cases, children raised as siblings have different legal status with their parents because one of the children was born to or adopted by one member of the couple and another child was born to or adopted by the other.
Given the complex legal possibilities, any parent in a same-sex union who is considering divorce should seek an attorney’s advice as early as possible so that he or she understands exactly where the current laws would leave his or her legal standing with his or her non-biological children. For more information, please visit our webpage on same-sex child custody and adoption.