Child Custody In LGBT Divorce: What To Know

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The last few years have been a time of great change in regards to same-sex marriage in Washington state, as well as the rest of the country. Gay or straight, marriage comes with challenges. Relationships don’t always work out and divorces happen no matter who’s involved. Similarly, divorce gets complicated across the board. One big issue that arises frequently is child custody in LGBT divorce.

Parents are parents, regardless of sexual orientation, and child custody battles can grow heated and emotional. Legal recourse is often the best way to settle the matter. But there are different issues afoot when determining child custody in same-sex divorce.

Best Interests of Child

The good news is, in general, in Washington, divorcing couples are all subject to the same regulations.

When it comes to establishing parenting plans and determining the residential schedule, the law, as written, equally applies to everyone.

This means that when ruling on child custody, the court accounts for the best interests of the child.

What’s best for the child determines how the parenting plan shakes out. Washington doesn’t use legal terms like “joint custody,” “sole custody,” and “visitation” like many other states. Instead, the law talks about how much residential time the child has with each parent. It’s different wording, but the end result is more or less the same.

Child custody in LGBT divorce often results in one parent being the primary residential parent. In these cases, the other parent generally spends a specific amount of time with the kids.

It is possible to set up a 50/50 split parenting plan. This setup works best when the parents remain living in close proximity to one another.

Who is the Legal Parent?

When both parents are legal parents, child custody in LGBT divorce plays out according to the same rules as in other situations. According to the law, there are a number of circumstances where the court considers both legal parents. Establishing this is one unique challenge same-sex couples face.

Adoption: When a couple jointly adopts a child, the law recognizes both as legal parents. Each partner has equal parental rights in the eyes of the law.

Biological Parent: Things get a bit less cut-and-dried when one spouse or the other is a biological parent. Many assume that this individual has a greater claim to custody than the other. Fortunately for the non-biological mother or father, that’s not necessarily the case in Washington.

Establishing Legal Parentage

In the Evergreen State, there are three ways to establish legal parentage in LGBT marriages and domestic partnerships. First:

  • Second Parent Adoption/Co-Parent Adoption: This is a legal procedure that allows the non-biological parent to adopt the child. This gives both partners equal legal rights when it comes to custody, visitation, and decision-making. It also gives the child two legal parents.

Predating legalized same-sex marriage, which didn’t come around in Washington until 2012, RCW 26.26.116 lays out two other statutes:

  • Presumption of Parentage: This legislation presumes that both partners are legal parents of children born during the course of a marriage. Regardless of which is the biological parent, both have equal claim to child custody in same-sex divorce.
  • Parent-Child Relationship: The state presumes an individual is a parent if, for the first two years of the child’s life, this person lived with the child and raised it as his or her own. Essentially, acting like a parent during this time gives you legal claim as a parent. This is often called a holding out provision.

When it comes to child custody in same-sex divorce, so long as both partners are legal parents, it doesn’t matter if one is biological or not.

In this case, under RCW 26.09.187, gay couples are subject to the same criteria as straight couples for establishing residential time parenting plans.

The most important factors are things like the nature of a parent’s relationship with the child, stability, and safety concerns.

Outside of Washington

Laws regulating same-sex marriage and parental rights differ a great deal from one state to the next. If you wind up relocating from Washington, make sure to educate yourself on the local legislation.

Some states are less welcoming in this regard. Non-biological parents may be placed at a disadvantage fighting for child custody in same-sex divorce.

It’s important to protect your interests and your family.

If this is a concern, it might be best to go through with a second parent/co-parent adoption. Recognized across the U.S., and even in many international territories, this firms up the footing of your parental rights.

Regardless of sexual orientation, when it comes to kids, family law cases often get heated and emotional. Child custody in same-sex marriage is no exception. For the most part, gay and straight couples are subject to the same laws in these matters, but there are unique circumstances to be aware of.

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