Let me talk to you a little bit about same-sex couples, divorce, gay rights, and the interplay of child custody rights of gay partners upon the birth of a child. Same sex partners can get married in New York and they have the same rights as heterosexual couples upon divorce. That is clear.
Where it gets confusing and challenging is when the gay couples have children before marriage or split up before marriage.
Same sex couples can share custody and while all of this is still true, they still face problems that other couples don’t face because the law has not caught up with the reality of society. For instance, heterosexual couples that get married and have children don’t have the problem of having to decide whether that child is going to be the mother’s or the father’s. It is just assumed that the child of the marriage is born of the marriage, and both parents can claim legal custody of them.
In situations where two women are married, and one of the women is artificially inseminated, even though under law, both parents are deemed the legal parents of the child, as an attorney, I would still highly recommend that in order to protect the rights of the non-biological parent the other parent might be best served to take additional measures to protect their rights.
One of these steps you can take is the good old tried and true adoption process. This way, if the marriage breaks up, it is quite clear that both parents, including the non-biological parent has the right to custody of the child.
This is equally if not more so important if the partners are unmarried.
Another example of where child custody rights become complicated during a gay divorce or partnership is when two fathers hire a surrogate to carry the child for them. In this situation, it is advisable that the surrogate designates both partners as the legal father(s)or mother(s) or else complete a second adoption process. The artificial insemination process should also specify in writing that the intention of the partners is to share custody of the unborn child.
The gay couple can also ask for an Order from the Court prior to the birth of the child, or an acknowledgment of paternity so that there is no question that the child is of this relationship.
A landmark case in the field of gay marriage and child custody is the Obergefell decision. If you were married after this decision and you are undergoing a divorce, your custodial rights can be decided during your divorce process.
If you were married before the law changed perhaps a second marriage in your state might be a good idea. The law governing child custody in unmarried partner cases is still developing such that it is not entirely clear as to what happens when unmarried gay partners have children and decide to split up, especially when the parties relationship is not legitimized by marriage. For instance, a gay couple hires a surrogate to carry their child. They are not married, and for some reason the couple separates. If the surrogate put one of the gay partner’s name on the birth certificate and one of the gay partner’s name on the acknowledgment of paternity this poses big problems for the alternate gay partner. This is true, even if both partners took an active role in raising the children. As such, if you are not married, and you intend to adopt, ensure that both of your names are on the birth certificate, you have a written agreement with the surrogate, and you obtain some pre-birth Court Order so that it is very clear that both of you have custodial rights to the children.
In other words, if a gay unmarried couple has taken all of the avenues necessary as discussed above in order to provide a legal basis for parentage, then the courts will likely treat custody the same as it would for heterosexual couples.
By:
Your New York Divorce and Child Custody Lawyer