Child Custody Rights Between Same-Sex Partners

Raising a child is a big job that requires the involvement and input of many people to provide the necessary amount of care. This effort often involves family, friends, neighbors, teachers, and childcare givers all contributing to the child’s wellbeing. For LGBTQ parents, parenting may also come from a partner who is in the child’s life from the very beginning, but the relationship is not recognized as a legal marriage. Children do not differentiate those they love by what the law says their relationship is, but if the couple does not remain together, the lack of a marriage and/or legally-established parental rights can have a definitive influence on what rights, if any, a partner may have to remain in the child’s life. While the law has definitely made it easier for same-sex couples to establish parental rights, there is still a lot of gray, and courts continue to struggle with how to define and delineate child custody rights in these situations. A recent example comes out of Pennsylvania, where the State’s highest court upheld a lower court ruling that found a same-sex partner would not have the ability to assert parental rights over her girlfriend’s child when the two were not married, no adoption occurred, and the partner never presented herself as the child’s parent during the five years the three lived together. Obviously, this outcome is disconcerting for many same-sex partners in similar situations, and an overview of how this issue has been viewed by Florida courts will follow below.

Status of the Relationship and Child’s Birth

The illegality of same-sex marriage until recent years and the lack of biological connection with both partners are the primary reasons for the complications surrounding child custody issues. Typically, married couples are automatically recognized as a child’s parents upon birth, and absent a challenge to the child’s paternity, both spouses assume all the legal rights and responsibilities of parenthood. If a couple is not married when a child is born, the father has the option of establishing paternity separately to obtain these same rights and responsibilities. In the case of same-sex couples, many children were born before same-sex marriage was legalized, and the need for assistance with reproduction means the child is typically related to just one half of a couple. As a consequence, the non-biological parent is on shaky ground when it comes to child custody, and additional legal steps should be taken to ensure both parents have equal rights to the child.

Securing Parental Rights

Since Florida holds that married couples are the presumptive parents of a new child, the same rule should apply to same-sex couples, and in fact, Florida now lists the names of married couples on birth certificates, regardless of the couple’s sex. This creates the basic constitutional right to parent. However, for unmarried couples or for those who use gestational surrogacy to conceive a child, meaning neither parent is biologically related to the child, something more is needed. In these situations, one or both parents need to formally adopt the child, a fairly simple but essential procedure, to ensure full parental rights are granted. Without this protection, a partner could find him/herself cut out of the child’s life because he/she would not be considered a legal parent, no matter the love and attachment the non-related parent and child have for one another. Same-sex parenting rights are still in a state of flux, and an experienced family law attorney should be consulted about any related question.

Get Legal Advice from a Florida Family Law Attorney

The parent-child relationship should outlast any marriage or partnership, and if you have questions about your parental rights, talk to the attorneys at All Family Law Group, P.A. Do not risk your future with your child. Get legal help today.  Contact the Tampa same-sex divorce attorneys and family lawyers at in Tampa Bay at 813-672-1900 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Resource:

pennlive.com/news/2018/09/woman_cant_have_custody_of_for.html

https://www.familymaritallaw.com/special-issues-for-same-sex-divorce/