A child custody hearing can be incredibly difficult. There aren’t many stories out there about how easy it was to go through a custody discussion with a former spouse or partner. Instead, most people only hear the horror stories of how challenging custody hearings are for everyone. The same situation applies to same-sex couples who are divorcing. The custody portion of the divorce is burdensome and complex. Today, we will discuss what to expect when it comes to same-sex divorce and child custody.

Divorce and Custody

If you and your spouse are ending your marriage, you have every right to file for divorce and then determine who will have custody of your children. When divorcing as a same-sex couple with children, a state court handles your case. The court will be responsible for creating a child custody order if you and your spouse cannot agree on the conditions of child custody. The court will consider the following before developing a custody order:

  • Each party’s testimony
  • Any evidence presented
  • Who adopted the child, whether singularly or jointly
  • The child’s status as an extended member of each parent’s family
  • The best interests of the child
  • Any incidents of domestic violence or child abuse, if applicable

Is One Parent a Biological Parent?

One parent could be the biological parent of the child in a same-sex relationship. If this is the case, the non-biological parent must fulfill one of two prerequisites before claiming custody. The non-biological parent could have taken the steps necessary to adopt the child, or they could have a parental judgment declaring he or she has visitation or custodial rights to the child. If they did not legally adopt the child or acquire a parental judgment, then the court most likely will not order this parent to pay child support.

How Are Both Parents Legal Parents?

For you and your spouse to be the legal parents of the child, you must meet one of the following parameters:

  • Your child was born into the marriage, civil union, or registered domestic partnership.
  • Both you and your spouse jointly adopted the child.
  • The non-biological parent either adopted the child through a stepparent adoption or obtained parentage through the aforementioned action.

Filing for a Same-Sex Divorce? Contact an Attorney

If you are filing for a same-sex divorce in New Jersey, and there are children in the marriage, you need to speak to an experienced family law attorney. Child custody in same-sex divorces is complicated, especially when it comes to whether one spouse is the adopted parent of the child. The Law Offices of James C. DeZao, P.A. has a skilled team of divorce attorneys that can help you sort out the complexities of child custody within a same-sex divorce. Call us at (973) 358-6134 to schedule a free consultation today. Protect the future of your child and your rights as a biological or adoptive parent with the right legal team. Remember, with us, it’s personal.