How is Child Custody Determined for Same-Sex Couples in California?
Child custody in a same-sex divorce can be more complicated than in an opposite-sex divorce. Here are the basics of child custody for same-sex couples in California.
In the divorce of a same-sex couple who have children, child custody must be determined just like any other marriage. If both spouses are the legal parents of the child(ren), then child custody will be determined similarly to opposite-sex divorces. However, if only one parent is the legal parent, then the other spouse will not have the same rights that the parent does in terms of child custody. Instead, they have the right to request reasonable visitation.
Child custody basics
Child custody in California refers to parents’ rights and responsibilities in regard to their children. In the divorce of a marriage, child custody must be explicitly determined and allocated between the parents.
There are two types of custody: legal and physical. Legal custody refers to the ability to make important decisions regarding the child, such as education, healthcare, etc. Physical custody refers to with whom the child will live. Both types of custody can be either joint or sole, which means either shared between the parents or held entirely by one spouse. For example, a child might live exclusively with one parent, but the other parent may be able to share in the decision-making process regarding where the child will go to school.
Related: Legal vs Physical Custody in California: The Difference
In a divorce, parents may come to an agreement regarding child custody, and judges will usually approve this agreement. If an agreement cannot be made, the judge must make a determination based on the “best interest of the child”, which includes considering:
- The relationship between each child and the parents
- Any history of abuse by the parents
- Any history of substance addiction by the parents
Related: What The “Child’s Best Interests” Mean in California Courts
If both spouses in a same-sex couple are the legal parents
In California, if the spouses in a same-sex marriage are both the legal parents of the child, then the child custody case will be handled exactly the same as if it were an opposite-sex marriage. For example, both parents may have adopted the child together or the non-biological parent may have completed a stepparent adoption.
Child custody cases are the same in this case as if it were a heterosexual marriage since California law states that sex and sexual orientation shall not be considered when determining that which is in the child’s best interest. As such, it would be illegal for a judge in a divorce case such as this to treat it any differently than an opposite-sex divorce case.
If only one spouse is the legal parent
However, many same-sex couples are in situations where one spouse is not the legal parent of the child even if they served as a primary caretaker for the child’s entire life. For example, consider a lesbian marriage in which one spouse had a child prior to the marriage and the biological father has never decided to allow the other spouse to adopt the child. In this case, even if the non-parent spouse raised the child from infancy, that spouse will not have the rights that the legal parents have in regards to child custody. Rather, the non-parent has the right to request reasonable visitation, as stated in California Family Code Section 3100 (a), if it is determined that they have an interest in the welfare of the child.
In general, the best result in a scenario such as this is that the spouses come to a reasonable agreement regarding child custody outside of the courtroom. However, if the other biological parent opposes the non-parent’s custody, then the situation can become much more complicated. If you are dealing with a complicated child custody case as a result of same-sex divorce, contact Her Lawyer to be put in touch with an expert child custody attorney who will help ensure that the process goes as smoothly as possible.
FAQs about Child Custody for Same-Sex Couples in California
Will courts determine child custody from a gender-neutral standpoint?
Yes. Child custody laws in California are gender-neutral.
Is child custody determined identically in a same-sex divorce as an opposite-sex divorce?
If both parents are the legal parents of the child, then courts will make no distinction between whether or not the couple is same-sex or opposite-sex.
What if one spouse is not the legal parent?
That spouse does not have the same rights as the legal parents do in terms of child custody. Rather, they have the right to request reasonable visitation.
Can the non-parent receive child custody?
Yes, if the spouses reach an agreement outside of court. But, if the other biological parent opposes this, then the situation becomes much more tenuous.
Do I need a lawyer?
A contested child custody case generally necessitates the involvement of lawyers regardless of whether or not the marriage is same-sex or opposite-sex because these cases can become very complicated. If a spouse is a non-parent, then the situation can become even more complicated. Contact Her Lawyer to be put in touch with a lawyer who will guide you through this process.
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If you have any more questions about child custody for same-sex couples in California, contact us. Get your free consultation with one of our experienced Child Custody Attorneys today!