On June 26, 2015, the United States Supreme Court, in its landmark ruling in Obergefell v. Hodges, legalized same-sex marriage under the Due Process Clause and Equal Protection Clause of the United States Constitution. This landmark case gave same-sex couples the same rights as heterosexuals to marry and start families. However, it also gave rise to another issue: how to handle divorce and child custody cases of LGBTQ+ couples. In this article, we will discuss topics pertaining to what happens when same-sex couples divorce.
What is Obergefell v. Hodges?
Obergefell v. Hodges is a civil rights case decided by the United States Supreme Court. It recognized the right of same-sex couples to marry under the Fourteenth Amendment of the United States Constitution. The Supreme Court ruled that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples”.
What Happens in Same-Sex Divorce Proceedings?
If a same-sex couple wishes to divorce and there are no children, then the court deals with the divorce in the same manner as a heterosexual divorce. Ideally, the same-sex couple will be able to mediate a settlement and have the court approve it. If not, the courts would look to an equitable way to distribute the property.
What Happens if with Child Custody?
Deciding how to handle child-custody issues in a same-sex divorce can be very complicated. Although the child’s best interest still applies, the court will need to make decisions concerning child support, alimony, primary custodianship, and visitation schedules. The courts will look into whether one parent is the biological parent of the child, legally adopted by one parent, or legally adopted by both parents.
What Happens if One Parent is the Biological or Legally Adopted Parent of the Child?
Suppose one parent is the child’s biological or legally adoptive parent and the other same-sex parent does not legally or formally adopt the child. In that case, the biological parent will get full custody and child support from the former spouse. The biological or legally adopted parent will also determine whether to grant visitation rights to the former same-sex spouse.
What Happens if Both Same-Sex Partners are Legally the Parent?
Suppose one parent is the biological parent, but the other parent has formally or legally adopted the child. In that case, the court treats both parents as if they have equal responsibility towards the child. This is also true if the child is not biologically related to either parent, but both parents legally adopted the child. In this situation, the court will treat it the same way as a custody hearing of a heterosexual couple.
What Happens if the Parents Conceived the Child Through Infertility Treatments?
If one parent is the biological parent from infertility treatment, then the child-custody hearing can become complex. Although one person in the couple will be the child’s biological parent, they conceive the child with the consent and financial and emotional support of the other spouse. If the other spouse formally adopted the child, then the court treats it as if both spouses are the legal parent. Suppose the other spouse did not officially adopt the child. In that case, the court will apply the best interest of the child practice and look to emotional connection, financial support, and the intent of both parties as to how they had planned to raise the child if they were to remain married.
Child-Custody Cases are Complex
Whether it is a same-sex divorce or a heterosexual divorce, custody cases are complex. To best protect your parental rights and your child’s best interest, it is advisable to always consult an experienced attorney. The lawyers at Thompson Law will help guide you through the process and advise you on the best legal strategy.