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Do all same-sex parents have the same child custody rights?

On Behalf of | Feb 7, 2023 | Family Law |

Same-sex parents can face conflict in their relationship, just like heterosexual parents can. However, unless certain steps are taken, same-sex parents might not have equal child custody rights.

Becoming a parent as a same-sex couple

Same-sex couples have options for becoming parents. Some of them choose in-vitro fertilization. Some same-sex couples choose surrogacy. And some same-sex couples choose to become parents through adoption.

Through in-vitro fertilization or surrogacy, only one same-sex parent is the child’s biological parent. Still, both parents generally intend to raise the child together as a parental unit.

And sometimes when a same-sex couple adopts, only one parent will be assigned the adopted child’s legal parent. Still, both parents generally want to raise their child together as a family.

Child custody issues

Any of these forms of parenthood can cause child custody difficulties should the parents decide to divorce or break-up. This is because only a child’s biological parent or legal parent is granted custody rights by default. The other same-sex parent will need to take steps to be considered the child’s legal parent with equal parental rights.

For example, if a same-sex parent adopted the child or gave birth to the child while they were a in a relationship with their partner, their partner might want to adopt the child as a second parent or step-parent. This gives that partner legal rights to their child as a parent.

Step-parent adoption is a choice when same-sex couples are married but only one of them is designated as the child’s legal parent. Second-parent adoption is a choice when same-sex parents are unmarried and only one of them is designated as the child’s legal parent.

Even if both parents are named on the child’s birth certificate, this does not confer upon them equal parental rights. Only a step-parent adoption or second-parent adoption can designate a non-biological parent as the child’s legal parent.

If a same-sex spouse is not designated as the child’s legal parent, they might lose custody and visitation rights if they divorce or otherwise end their relationship. The child’s biological or adoptive parent also cannot seek child support unless their former partner is named the child’s legal parent.

For all these reasons, same-sex parents might want to take the steps necessary to ensure they are both determined to be their child’s legal parent.


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