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Same-Sex Couples & Child Custody Issues

Same sex parents who are headed towards a divorce or separation have the same problems, issues, and concerns as heterosexual parents.  Avoiding a custody battle that can get very complicated not only for the couple but for the children as well is advisable.  A joint decision needs to be reached on matters such as legal custody (decision making for the child), physical custody (who the child lives with), visitation rights (how often the noncustodial parent visits), and child support.

If both of you are legal parents

Same sex couples can be legal parents if –

  • Both jointly adopted the child.
  • The child was born into a marriage or civil union or registered domestic partnership.
  • The non-biological or non-adoptive parent adopts the child.

In a situation where both parents have equal legal rights, child-related issues are handled as it would be for ‘straight’ divorces. A judge would decide the outcome of the issues related to the custody of the child based on a number of factors.

If only one of you is the legal parent

If only one parent is the legal parent then the second parent’s rights, in all probability, will not get enough recognition by the court. The first parent or the legal parent gets the right to decide on most of the issues related to their child or children.

The sole parent has the right and power to curtail visitation rights of the second parent. The legal parent, by default, becomes the legal and physical custodian of the child or children involved. The second parent, in all likelihood, will have to pay child support as demanded by the legal parent.

The second parent can always file for partial custody and more lenient visitation rights. It should always be kept in mind, that where the law does not give equal preference to both the parents, it is always a very good idea to go for mediation and not go through the court system.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

divorce_attorneyGerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

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