Unless one parent is deemed unfit, both parents have a right—and responsibility—to maintain a relationship with the child and get involved in their daily lives.
Navigating issues of child custody and child support can be emotionally taxing for any parent, but many LGBTQ+ parents may feel an extra measure of concern in situations where they are not the child’s biological parent and are not named as a parent on the child’s birth certificate upon the child’s birth.
It’s natural to have uncertainties about how the legal process will go, and you’re not alone. Many LGBTQ+ parents have successfully navigated child custody and child support in New Jersey. With the support of a knowledgeable family law attorney, reaching a resolution that works well for your family is possible.
Legal rights of same-sex parents in custody disputes
Simply being part of a same-sex couple doesn’t diminish your right to maintain a relationship with your child. However, the way your child entered the family may affect how custody is determined in a same-sex divorce.
For example, if you and your soon-to-be ex adopted a child together, by virtue of the adoption, the adopting parent will have the same parental rights as the biological parent.
Similarly, same-sex couples who grow their family through IVF or surrogacy may choose to sign paperwork before the baby is born indicating that both spouses will hold parental rights. In these situations, if the non-biological parent is named as a parent on the child’s birth certificate the court will consider each person to have equal rights to the child no different than with opposite sex couples.
Psychological parenthood
What if you didn’t take legal measures to establish legal parental rights prior to a divorce? What if your partner is the child’s biological parent, but you have been raising your child together?
Even if you’re not the biological parent of your child, your rights aren’t automatically less than that of the biological parent. You have a special bond with your child that deserves to be protected.
In these scenarios, it may be necessary to prove psychological parenthood when petitioning the court for child custody or support. New Jersey grants non-biological parents the legal parental right to seek custody or parenting time if they can show that they have a strong psychological bond with the child and that it’s in the child’s best interests to maintain a relationship.
This may be an effective approach for you if:
- You lived in the same household with the child for a significant period of time
- You provided financial support for the child
- You took an active role in the child’s upbringing
- You’re a source of love, care, and guidance to the child
If you believe you’re in a situation where psychological parenthood applies, document the reasons why and seek legal counsel.
How is child custody determined in same-sex divorces?
New Jersey courts don’t consider the parents’ sexuality in child custody cases. Rather, they focus on what type of living arrangements and parenting time schedule will be most beneficial to the child exactly the same as the focus would be with opposite-sex divorces.
Depending on the specific circumstances of the divorcing couple, child custody and child support may be determined through mediation, litigation, or a combination of both.
Mediation vs. litigation
While preparing for divorce, many parents envision settling child custody and child support arrangements in a traditional trial setting with their family law attorney by their side. This scenario, called litigation, can be useful when parents struggle to compromise on child custody or support matters.
However, letting the court decide these sensitive issues is not your only option.
Divorcing couples in New Jersey may also work together to develop their own parenting plan, as long as the final plan reflects the best interests of the child. Many find they can resolve a majority of—if not all—aspects of child custody and support through mediation.
Mediation is a form of alternative dispute resolution in which co-parents work together with a neutral third party to discuss and resolve child custody matters.
As the situation evolves, you may find that a combination of both mediation and litigation is needed to create a fair and effective plan. Working with a family law attorney who’s experienced in both realms can help you create a personalized strategy for your child custody matter.
Factors influencing child custody decisions in same-sex divorces
In any divorce, be it with same-sex couples or opposite-sex couples, New Jersey family courts determine child custody based on the best interests of the child.
Whether you and your co-parent choose to resolve the matter through mediation or litigation, the court will consider a variety of factors before approving a parenting plan, including:
- Each parent’s employment status
- Whether there’s a history of domestic violence
- Cooperativeness of each parent
- Proximity of the parents’ residences
- How much time the child spent with each parent prior to the separation
- The child’s safety
- The child’s age
- Whether any siblings are involved and the child’s relationship with them
These factors will be considered in every case, regardless of the parents’ sexual orientation.
Co-parenting in same-sex divorces
As you might expect, same-sex co-parents in New Jersey have the same obligations and rights as heterosexual co-parents.
The court maintains it’s in the best interest of a child for both parents to work together when making decisions about:
- Education
- Healthcare
- Religion
- Extracurricular activities
Unless one parent is deemed unfit, both parents have a right—and responsibility—to maintain a relationship with the child and get involved in their daily lives.
Co-parenting your child will require a long-term commitment to communication and cooperation between you and your co-parent. Here are some co-parenting tips to get you started:
- Be respectful of each other and your different perspectives, especially in front of your child.
- Communicate openly and honestly.
- Be flexible and stay open to compromise.
- Put your child’s needs first, always.
If you’re having trouble co-parenting with your same-sex partner, there are resources available to help you. You can try mediation or arbitration to resolve your differences. You can also seek support from other same-sex co-parents or from a mental health professional.
Remember, you’re not alone. There are many same-sex co-parents who are raising happy and healthy children.
Consult with an attorney
When you’re navigating a child custody case, it’s important to know your rights and responsibilities. At Dughi, Hewit & Domalewski, we understand how overwhelming this process can be.
Our compassionate family law attorneys work diligently to identify creative solutions that are in the best interests of your family and keep you informed every step of the way. Schedule your consultation today.
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