Getting a divorce as a same-sex couple is almost identical to getting one as a mixed-sex couple. LGBTQ+ couples have been afforded the same rights in divorce as straight couples since the legalization of gay marriage in California in 2013.
One area where LGBTQ+ couples need to be aware of differences is in child custody cases. While the process for gaining or retaining custody can be slightly different, it isn’t daunting if you know what to expect.
Here are five things to know about child custody within LGBTQ+ relationships in the state of California.
1. You Need to Establish Parentage
There are multiple ways to grow a family, but not every way will automatically grant parenting rights to both parents. One of the largest hurdles to overcome in an LGBTQ+ custody case is making sure you have parentage status of your children.
In some situations, you have presumed parentage, in others you need to fill out forms of agreement or go before a judge to be recognized as the parent of a child.
The steps for establishing parentage are the same for everyone no matter their sexual orientation. The laws don’t distinguish between same-sex and mixed-sex marriages.
If children are biologically related to you, getting parentage is usually straightforward and is often presumed. If you are the birthing parent of a child then you are automatically presumed to be a legal guardian of the child. The only exceptions to this rule are in cases where the birthing parent is a surrogate or in cases where an adoption has taken place.
If you are the biological parent of a child but are not the birthing parent, you are granted presumed parentage rights if you were married or in a registered domestic partnership with the birthing parent at the time of conception or birth.
In situations where you are a biological parent but are not in a relationship recognized by the state of California, you will need to establish parentage through official channels. There will be more on this below.
People are often surprised to learn that there are automatic ways of gaining parentage even if a child is not biologically related to you. You might already have presumed parentage and not realize it.
In some instances, you will still need to file the appropriate paperwork or go before a judge to gain your parental rights.
Donated Egg, Sperm, or Embryo
There are many instances where LGBTQ+ couples use donated eggs, sperm, or embryos to grow their families. There are a few common scenarios where presumed parentage will still be an option even when donated sex cells are used. They are:
One partner uses donated semen to carry a child with their ovum.
A couple uses a donated embryo and one partner carries the embryo.
One partner carries an embryo that is created from donated sperm and the other partner’s egg.
In these situations, the birthing parent would have presumed parentage status even if they are not genetically related to the child.
The laws are similar for biological and non-biological parents when it comes to parentage if one parent carried the child. The non-birthing partner would be considered a legal parent if they are married or in a registered domestic partnership with the partner who was pregnant at the time of conception or birth, regardless of DNA.
This is where people are sometimes pleasantly surprised. Non-biological parents often think they have to do more to secure their parentage rights. While they can choose to do an official adoption or secure parentage on paper in another way, they are not required to do so as long as they are legally tied to the birthing partner.
If a gestational carrier gives birth to your child you will need to establish parentage in court. This is true even when your egg or sperm is carried by the surrogate because the person who gave birth is always a presumed parent.
California recognizes pre-birth orders (PBO), so you can establish parentage before your child is born. When a gestational carrier is used, both partners will gain parental rights through a judge’s ruling. As long as a legal surrogacy agreement was signed before pregnancy, a PBO is easy to obtain.
The process of adopting a child requires court-appointed parental rights.
The most common situation involves a couple who adopt a child together and both have parenting rights after the adoption is finalized.
If you enter a relationship with someone who has a child from a previous relationship you will need to adopt the child to gain legal parenting rights. This is true if the child is biologically their child or not. If there are already two parents you will need the consent of both to become a third parent or you will need one of the parents to relinquish their rights to become a parent without their permission.
How to Establish Parentage
In California, you can establish parentage in a few different ways if you are a presumed parent. You will need to do this before suing for custody, child support, visitation, or any other parental rights.
Sign a Voluntary Declaration of Parentage
A Voluntary Declaration of Parentage (VDOP) is a document that lets the birth parent of a child grant parentage rights to another person in addition to themselves. This document is often signed at the hospital, but it can be done down the road as well.
This option is easy, cheap, and doesn’t require legal representation. It is the best option for partners who aren’t married or in a registered domestic relationship at the time of conception or birth. Many individuals in committed relationships will do this, but it is also an option for people who aren’t together anymore, but are still on good terms.
A VDOP is binding but can be rescinded by either parent within 60 days of signing. If a partner cancels your parentage within this window you can still be granted parentage from the courts.
If you believe you have a right to parentage and the legal guardian of a child won’t sign a VDOP, you can still obtain parentage through a judge’s order. All hope is not lost.
If you don’t meet the requirements mentioned above and have not been able to peacefully sign a VDOP your last stop is the court system.
A judge will hear both sides, take into account any relevant information, and decide if you meet the criteria for legal parentage. DNA, how present you have been for the child, and your attempted level of support to the child are often considered.
If you didn’t know that you had a child and faithfully attempt to enter the child’s life when you find out you can gain parentage through the court as well.
Contact a lawyer if you have not been able to gain parentage through a VDOP. Each case is different and they will be able to help you pursue your rights in the best way.
2. More Than Two Parents Can Have Custody
The state of California recognizes the right for more than two people to have parental rights to a child. There are multiple situations where three people will want parental rights. Most have been in LGBTQ+ relationships where a sperm or egg donor was used.
In some circumstances, a couple will want to share parent status with the egg or sperm donor who helped them conceive. There are no automatic parental rights for a third person, but with the cooperation and desire of the parents, a sperm or egg donor can go before a court to be legally recognized as a third parent to a child.
You will not make headway in a case where the legal guardians do not want a third parent. Before donating your sex cells, make sure you are on the same page with the couple or organization you are donating to. If you see yourself wanting a relationship with the child, you will want to work with a couple who enthusiastically agrees to that before donating.
3. The Child's Best Interest is Prioritized
The largest consideration for custody, regardless of each parent’s sexual orientation, is what is best for the children. Multiple factors will go into this decision. Don’t be discouraged if you aren’t a biological parent or if you didn’t establish parentage until right before your divorce proceeding; if you provide value to your child’s life, you will likely receive some form of custody or visitation.
What impacts custody agreements?
When a court decides on a custody agreement, its number one concern is the safety and stability of the children involved. Stability can be achieved in a variety of ways.
Typically courts will want to make sure that kids can stick to their normal routine as closely as possible and that their needs are being met.
Keep Kid’s Schedule
In many situations, kids can live with both parents part-time in a shared custody agreement and keep the normal schedule of their lives.
Courts will favor a custody agreement where kids can stay in their same schools, participate in the same extra-curricular activities, and largely go through their day in the same way they had before their parents’ legal separation.
In some situations, one parent will not be able to keep their children’s schedule and as a result, they will only have visitation rights or less than 50/50 custody. This happens most commonly when one parent travels frequently for work or plans on moving.
A visitation schedule can be made to accommodate the parent’s work schedule, but typically they are gone enough that it is disruptive to the child’s schedule so the other parent will have primary custody.
If you plan on moving out of the area, your chances of shared or primary custody are much lower unless you are the primary caregiver. Children getting to stay in the same school and geographic area is one of the largest factors in stability. The parent who plans on staying in the area will have certain advantages that the moving parent will have to overcome.
Have You Been a Stay-at-Home Parent?
Stay-at-home parents are often awarded primary custody, especially if children are young. Children need to have continuity. Staying with the parent who has been primarily caring for them is often the most stable option.
Financial, Emotional, and Physical Support
Parents have to be able to prove the ability to financially, emotionally, and physically support their children. There is some leniency in this though, particularly in situations where one spouse has more money.
You will not automatically be denied custody because you make little or no money. The court will look at the all-encompassing picture when deciding custody. Many factors decide what financial support is required.
A judge is more likely to award a parent spousal or child support to help them financially provide for their children than to not award custody solely based on income. This is especially true in situations where one parent has been a primary caregiver and hasn’t worked to be with children before the relationship ended.
The physical well-being of a kid includes the ability to provide shelter but goes beyond that as well. Abuse and other forms of neglect will result in a loss of custody.
4. Non-Discrimination Laws Protect You
California codified a non-discrimination law in 2019. SB-495 makes it clear that sexual orientation and gender identity are not factors in child custody cases.
You still might come up against prejudice throughout the process, so it is important to know that you are legally entitled to the same rights and protections during custody hearings as non-LGBTQ+ parents are.
Anyone who makes an argument otherwise is incorrect and fighting a losing battle.
5. Find a Lawyer with LGBTQ+ Experience
If you are going through a divorce or legal separation as an LGBTQ+ couple you will want to work with a lawyer who has experience in this area. The law is on your side, but it still helps to have someone who is confident in your rights and who knows what to expect.
A fair custody agreement is just as possible for an LGBTQ+ couple as it is for a mixed-sex couple. There might be extra steps to gain parentage in your specific situation, but an LGBTQ+-friendly lawyer will guide you through the process with less headache.
Were any of the tips above surprising to you?
Let me know what you learned or if you have any other advice in the comments.