Same-sex couples can have children together through a variety of means. When a same-sex couple decides to get a divorce, the court determines child custody much like they do with heterosexual couples. This occurs quite frequently, considering that data from Williams Institute indicates up to 1.8 percent of same-sex couples go through a divorce every year.
Attorneys who help with divorces for heterosexual couples are typically proficient with same-sex divorces. Most things are the same, but there are slight nuances with the law that can result in some dissimilarities. The important thing is to consult with a lawyer to see what action clients need to take with each specific case.
When both spouses are parents to a child
A same-sex couple may have jointly adopted the child, or the child may have been born into the marriage. Either way, when both parents have custody rights, the matter will go to court. However, the couple can also attempt to work out a custody agreement before that happens, which can make matters much easier for the parents and the child. If the two parties cannot reach an agreement, then a judge makes the decision.
When only one spouse is a parent
It is much more difficult to share custody when only one spouse is legally a parent to the child. Typically, a spouse who is not actually a parent of a child does not technically have any rights. There have been instances in the past of one spouse getting sole custody. However, it ultimately comes down to the decision of the court
A variety of factors is brought into consideration when a same-sex couple determines custody. For example, one spouse may not legally be a parent but has raised the child for many years. In this circumstance, a judge may find it prudent to award joint custody. Every case is different, so it comes down to the discretion of the judge.