The recognition of same-sex marriage in Washington state began on December 6, 2012. Prior to the passing of Referendum 74, same-sex couples had the option of registering as domestic partners.
The legalization of same-sex marriage in Washington State provisioned that domestic partnerships that were not dissolved within two years would automatically convert into a marriage.
Obtaining a marriage is the same process for all people after the U.S. Supreme Court’s 2015 ruling in Obergfell v. Hodges, which legalized same-sex marriage nationwide. Prior to that ruling, the since overruled Defense of Marriage Act (DOMA), didn’t require any state to recognize same-sex marriages from other states.
States that didn’t allow same-sex marriage could choose not to recognize those that were performed in other states as valid marriages. Therefore, even if a same-sex couple met the residency requirement for divorce, they could be denied a divorce if they resided in a state that didn’t recognize that type of marriage.
This was a significant problem because many non-resident gay couples would flock to states that legalized same-sex marriage early on to participate in a ceremony that ultimately was more ceremonial than legal.
In addition, states that chose to not recognize same-sex marriage generally refused to enforce same-sex divorce judgments against their residents as well.
The Obergefell decision, which protects marriage equality at the federal level, also requires states to recognize valid same-sex marriages performed in other states.
Court orders (including support orders) were often unenforceable across state lines if, for example, an ex-spouse moved to a state that didn’t recognize same-sex marriage.
Initially, the workaround was to petition for divorce in a state that recognized same-sex marriages because they would generally grant a divorce without imposing residency requirements upon a couple.
LGBTQ and Child Custody
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 Interest of The Child
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.
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 LGBTQ 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.
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.
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.
Establish 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.
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 as a parent during this time gives you a legal claim as a parent. This is often called a holding-out provision.
When it comes to child custody in LGBTQ 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, all couples are subject to the same criteria 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.
Every family is unique, and yours is no different. Regardless of sexual orientation or gender identity, you deserve aggressive legal representation to protect your rights.
Couples facing LGBTQ divorce have many questions. The decisions you make during your divorce can continue to impact your life for many years. It is imperative that you understand your rights and educate yourself on the divorce process, as LGBT family law is constantly evolving.