We Can Help With Same-Sex Divorce
In 2015, the Supreme Court heard Obergefell v. Hodges. In that landmark case, the Supreme Court affirmed that the right to marry was a fundamental right guaranteed to all Americans, including same-sex couples. The Court held that the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution guaranteed to same-sex couples the right to marry.
So, because same-sex couples can marry in every state, they can also divorce in every state. Like opposite-sex divorces, the process is relatively the same for same-sex divorces; however, issues can arise in the context of parentage and child custody during same-sex divorce.
In situations where both parents have a legal relationship with the child/children, custody, parenting plans, and issues of support are dealt with no differently than the same issues would be in an opposite-sex divorce. When the parents cannot agree to custody arrangements, a guardian ad litem may be appointed to make factual findings and report on a parenting plan. Further, in issues where both parents have a legal relationship with the child/children, no preference is given to the biological parent over the other.
Co-Parenting When One Parent Isn’t A Legal Guardian
In cases where one parent is not the legal guardian, it is advisable to create a legal relationship via co-parent adoption before the entry of a divorce judgment. Massachusetts courts have somewhat streamlined the adoption process by providing an administrative allowance of adoptions to same-sex couples.
What happens when a parent does not have a biological connection with a child who was born before the parties married? In those cases, the parent without the biological connection can be deemed the child’s presumed parent under certain circumstances.
A Massachusetts case called Partanen v. Gallagher held that when a child is born to someone’s partner, and that person along with their partner received the child into their home and held the child out as their own, the parent lacking the biological connection can establish himself or herself as the child’s legal parent.
Finally, what happens in same-sex divorce cases when the child/children are not the legal children of the parents? In these circumstances, an attorney should be consulted to determine whether the non-legal parents have equitable rights to the child. Then, a complaint to establish de facto parentage is filed and consolidated with the complaint for divorce.