How Does Child Custody Work in Same-Sex Divorce?
Divorce is never easy, especially when children are involved. For same-sex couples, the process of determining child custody can introduce unique challenges due to evolving legal standards, social perceptions, and the diverse ways same-sex families are formed. In New York, the non-biological child born during the marriage of a same-sex couple is a legal parent of the child. The presumption of legitimacy applies equally to both parents in a same-sex marriage. New York law prioritizes the child’s best interests, but understanding the nuances of child custody as they pertain to same-sex divorce is essential. In this post, a New York City same-sex divorce attorney from the Law Office of Vivien I. Stark, P.C., explains how child custody works in same-sex divorce.
Legal Parentage
Legal and biological parents have parental rights in New York. This means that even if one parent is not the biological parent, they still have legal rights and responsibilities regarding the child’s upbringing.
- FCA §§ 581-202, 302 and 304 effective February 15, 2021 set forth the requirements to determine parentage for all surrogacy, paternity and assisted reproductive technologies (ART) so as to provide clarity as to the rights and responsibilities of all and to avoid the need for adoption by the non-biological parent(s).
- Birth certificates: New York law allows for the inclusion of both parents on a child’s birth certificate, regardless of their biological relationship. This helps to legally establish parental rights from the outset.
Types of Custody in New York
New York divides custody into two primary categories:
- Legal custody: This refers to the right to make significant decisions about the child’s upbringing, such as education, healthcare, and religious practices. Courts often award joint legal custody, allowing both parents to have a say in these decisions.
- Physical custody: This determines where the child will live and who will be responsible for day-to-day care. Physical custody can be with one parent or shared between both parents.
During a same-sex divorce, legal and physical custody arrangements will depend on various factors that affect the child’s best interests.
The Best Interests of the Child
New York courts prioritize the child’s best interests when making custody decisions. This standard applies equally to same-sex and opposite-sex couples. Key factors considered include:
- The child’s relationship with each parent
- Each parent’s ability to provide a safe and stable environment
- The child’s preferences, if they are old enough to express them
- Each parent’s physical and mental health.
- Evidence of any history of abuse or neglect.
- Courts strive to ensure that custody arrangements promote the child’s overall well-being, regardless of the parents’ gender or sexual orientation.
Unique Challenges for Same-Sex Couples
While the principles of custody law are the same for all parents, same-sex couples may face additional hurdles, such as:
- Proof of parenthood: Sometimes, establishing legal parentage may require additional legal steps, such as post-birth orders or parentage orders.
- Discrimination: While illegal, there is always a risk of unconscious bias or prejudice against same-sex couples in family court proceedings.
Protecting Your Parental Rights
For same-sex couples considering divorce, taking proactive steps to protect parental rights is essential. These steps may include:
- Establishing legal parentage: Ensure that both parents are legally recognized.
- Creating a parenting plan: Collaborate on a detailed plan outlining custody and visitation arrangements.
- Seeking legal counsel: Our experienced family law attorney can help navigate the complexities of custody disputes and advocate for your rights.
Contact Our New York City Same-Sex Divorce Lawyers
Child custody in same-sex divorces requires careful consideration of legal and emotional factors. New York courts’ primary focus is on the child’s best interests, but protecting both parents’ rights often requires proactive legal measures. If you are facing a same-sex divorce, contact the Law Office of Vivien I. Stark, P.C., to discuss your situation and understand your rights and options.