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How Is Child Custody Determined in Same-Sex Divorce?

How Is Child Custody Determined in Same-Sex Divorce?

In Massachusetts, same-sex divorce follows the same process as any other divorce, i.e. the couple must petition for divorce, attend mediation or court proceedings, and agree to final decisions. However, couples may still run into issues when agreeing to the terms of the divorce, especially if children are involved.

When only one parent is the biological parent in a same-sex marriage, child custody issues can be complicated. Does the other parent still retain legal rights of visitation and/or custody after divorce?

Parental Rights

In child custody disputes, Massachusetts law gives a significant advantage to the biological parent of a child. The state will usually grant these advantages to adoptive parents of children as well.

Massachusetts courts struggle with deciding custody if the non-biological parent did not:

  • complete a formal adoption before the divorce; and/or
  • supply a surrogate with sperm or an egg for child conception.

If both parents took necessary steps to appear on the child’s birth certificate as a biological or adoptive parent, both are likely to receive fair treatment from the court. If the non-biological parent did not officially adopt the child, they will have a difficult time establishing custody post-divorce, even if they are recognized as an important and active part of the child’s life. In these cases, the non-biological parent will usually be treated as a stepparent and will be granted few legal rights.

Fortunately, Massachusetts does provide some solutions for LGBT persons who are parents to children in every sense aside from their legal status.

Massachusetts court solutions include:

  • Recognition of de facto parents (a person who has taken on the role of parent on a day-to-day basis) in a child’s life.
  • Visitation rights, if the relationship with the child is close enough that its loss would harm the child.
  • Legal custodial status over a biological parent when it is clear the non-biological parent is the superior caretaker.

While these solutions don’t put the non-biological parent on equal ground with the biological parent when determining custody, an attorney experienced in same-sex divorce and child custody cases may be able to apply one of these solutions to your case.

Contact Barach Law Group LLC for a Consultation

Our divorce attorneys know how difficult the process can be. We understand how emotionally charged a child custody dispute can be as well.  Our attorneys will do everything we can to ensure you achieve the results you seek.

Contact our firm online or give us a call at (888) 209-7080 for a legal consultation.

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