How is Child Custody Determined During a Same-Sex Divorce?

The issue of child custody is almost always the most emotionally challenging and acrimonious aspect of divorce. Same-sex couples have the same risk of divorce as do male/female couples, and for them, child custody can be even more of a struggle. With one in five same-sex families in the state of Pennsylvania raising children, sex couples would be wise to understand the law on this issue at the time that they first consider having or adopting children in order to make sure that everybody’s rights are protected. Failing that, they need an attorney with experience in same-sex child custody working on their behalf.

There are many different ways that same-sex couples bring a child into their family. Some adopt a child who is not biologically related to either parent, while others use assisted reproduction, surrogates or artificial insemination by sperm donor that means that only one of the two parents is the biological parent. Pennsylvania recognizes this issue whether the family is same-sex or not, and makes decisions about child custody, child support, and visitation based largely on the doctrine of loco parentis, which refers to the legal adoption of parental status.

In loco parentis sounds extremely formal, but it gets to the heart of the issue when child custody is being discussed in a same-sex marriage and divorce. In practice, it is referring to the fact that even though only one (or neither) of the two partners in a same-sex marriage may be the child’s biological parent, if the partner is seeking custody, the court needs to determine whether the person acted as a parent.  The lack of a biological relationship is not to be used against partial custody.

As is always the case in the state of Pennsylvania, decisions about custody are based on what is in the best interest of the child, but same-sex couples can ease a significant amount of stress and pain if they establish a legal relationship between the non-biological parent and the child from the start. Adoption by a second parent is an easy step that a family law attorney can help you with when your relationship is strong, but if the situation is beyond that point and you are approaching a divorce and difficult child custody issues, contact our experienced child custody attorneys today to see how we can help.