When same-sex marriages result in divorce, the process is the same as it is for any other couple, straight or gay. Being in a same-sex marriage has no impact on standard court orders, which are gender-neutral. It doesn’t change asset distributions or even spousal support agreements. What does change, however, is child custody, and this can be devasting if you aren’t prepared.
Married versus unmarried: does it matter?
In Ohio, partners in a same-sex marriage who are married at the time the child is born may have both parties name on the child’s birth certificate if that is their wish. However, unmarried couples don’t enjoy this privilege in Ohio. Like many other states, Ohio does not presume parentage, and therefore at this point in time, they will not allow two people of the same gender to be listed as parents on a birth certificate.
If one parent is listed as the biological parent and the other is not, the party who isn’t named has no legal rights to the child in a separation. If it is your intent to raise a child together, it’s important that you protect your rights from the beginning, just in case.
How to protect yourself
The best way to protect yourself in this situation is to start by talking with an experienced family law attorney like the experts at Kirkland & Sommers. You do have options, but they will depend on whether you are married or single.
Married couples have the ability to file for a step-parent adoption. This is the same process that every family uses if one partner brings a child from another relationship into the marriage, and the new partner wishes to raise the child as their parent.
Unfortunately, unmarried couples cannot use the step-parent adoption to protect their rights. An adoption by one person terminates the parental rights of the other. For example, a woman who gives birth and has her name on the birth certificate could suddenly find herself with no parental rights to her own biological child if she allowed her partner to adopt the child in an attempt to establish parentage.
Unmarried couples do have options. Working with a family law attorney, you can prepare and file an order with the court addressing your relationship and your co-parenting obligations. Having this relationship and your obligations legally recognized by the court should give both parties protection in any future child custody agreement.
Don’t wait until it’s too late
When relationships are new and exciting and you’re so happy you want to raise a family together, it’s hard to think about what would happen if you split up. Of course, nobody wants to start a family with that thought in mind. That’s simply human nature.
But for same-sex couples, when you are starting your family is exactly the time to talk about making sure both of you have equal rights to the child. When you love someone, you want the best for them, and you would never want to see your partner lose their rights to the child they love. And they wouldn’t want that for you, either.
Start with an honest conversation with your partner about the need to protect each other. Then, get some information from a qualified family law attorney who has experience with LGBTQ families and child custody arrangements. Much will depend on how you want to bring this new little person into your family, and whether either of you will be biologically related to the child.
There is much to know and much to ask when it comes to determining child custody in LGBTQ families. If you want to know more, you can arrange for a free consultation with one of the family lawyers at Kirkland & Sommers. With more than 100 years of combined experience, we’ve helped many gay couples grow their families in a way that protects everyone’s rights. Our lawyers start by listening to you and learning the particulars of your situation. Once we get to know you and your relationship, we can help you review your options, establish a plan, and implement that plan together.
Whether it is child custody, divorce, or any other family law questions specific to the LGBTQ community, Kirkland & Sommers is here to help you. Schedule your free consultation today!