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Legal Issues for Same-Sex Parents During a Child Custody Battle

Since June 2015, same-sex couples have had the right to marry anywhere in the United States — an incredible, historic victory for marriage equality supporters everywhere. 

However, with marriage comes the reality of divorce, and with divorce comes child custody disputes. In this article, we’ll discuss some of the legal issues that same-sex parents may have to deal with during a child custody battle and how their legal needs may be different from parents who aren’t same-sex. 

What Happens When Both Parties Are Legal Parents? 

Thankfully, things have cleared up quite a bit for same-sex parents in cases where both parties have legal status as parents. The patchwork of state-by-state marriage laws used to create headaches and uncertainty for same-sex parents, but the nationwide recognition of same-sex marriage now means that courts should handle child custody disputes for same-sex parents who have taken steps for both partners to become legal parents in the same way as opposite-sex parents. 

Same-sex parents can gain full parental rights by legally adopting a child. In North Carolina, this can only happen when the parties have married and the non-biological parent adopts the child.  

If same-sex couples who have married and the non-biological parent has adopted the child separate, both parents have equal rights to pursue custody. Of course, this doesn’t mean that your child custody case will be simple. Judges consider many different factors as they decide what child custody arrangement would serve the child’s best interests, and the resulting legal cases can be very complex and time-consuming. 

RELATED: What You Need to Know About North Carolina Child Support

To learn more about some of the factors that the court will consider when deciding the outcome of your child custody case, visit our child custody practice area page. 

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What if Only One Party Is a Legal Parent? 

If only one of you is the child’s legal parent, things suddenly become a lot more complicated and uncertain. In general, if you’re not a legal parent to a child, you won’t have any legal rights as a parent, including the right to seek physical or legal custody of the child. You also may not be able to seek visitation rights, and you usually won’t have any financial obligation to support the child, either. 

This is because parents have a constitutionally-protected right to the control of their children. This right prevents third parties from being able to seek custody from a parent or parents. However, this constitutionally-protected right can be overcome if a third party shows that the parent (1) is unfit, (2) has neglected the child, or (3) has acted inconsistently with their constitutionally-protected status. 

For custody cases involving same-sex parties, the “acted inconsistent with their constitutionally protected status” is the factor that is used the most. One way that a parent acts inconsistent with their protected status is by voluntarily creating a relationship with a third party that is “in the nature of” a parent-child relationship (in other words, by allowing everyone involved to act as though the third party is the child’s actual parent). 

North Carolina Appeals Court Ruling Could Affect Future Same-Sex Custody Cases 

Just this week, the North Carolina Court of Appeals released an opinion (https://appellate.nccourts.org/opinions/?c=2&pdf=34873) which deals with a same-sex couple who were in court over a custody case. In the case, the defendant had the child through a donor sperm and donor egg. The defendant was considered the biological parent because she gave birth to the child. The plaintiff filed the case and sought custody by claiming that the defendant had acted inconsistently with her constitutionally-protected rights. 

The Court of Appeals held that a party pursuing such a claim must show two things: 1) they have a sufficient relationship with the child and 2) that the parent has acted inconsistent with their protected status. In the opinion, the Court of Appeals outlined the factors to be considered by a judge in such a case. They wrote that court must determine the intent of the biological parent as well as the actions that were taken by that parent. 

In this case, the court held that a judge should consider actions by the parties prior to the birth. Such actions could include the planning that took place, whether decisions were made jointly, how the parties held themselves out to others, how pre-birth expenses were handled, and who was present at the birth. 

However, the court held that while actions prior to the birth are important for showing the biological parent’s intent, they aren’t the sole factor since the child must first be born for the non-biological parent to form a relationship “in the nature of” a parent-child relationship. 

The Court of Appeals held that a trial judge must also consider what happened after the birth and whether the parent voluntarily allowed for the child and non-biological parent to create the parent-child relationship and held themselves out with the third party as parents to the child. 

One way to show this is how the parties presented themselves to family and friends. In this case, the parties had lived together for 20 months after the birth of the child. The court held that living together for that long as a family would be sufficient to show the parent acted inconsistent with their protected status. 

While the recent opinion from the North Carolina Court of Appeals establishes an interesting precedent that may affect future cases, this is an area of the law where it’s difficult to generalize about what might happen because the outcomes are so dependent on the unique facts of your case. As a result, it’s crucial to speak with an experienced family law attorney who can give you advice based on your unique situation and who knows the local courthouses well. 

Myers Law Firm: Child Custody Attorneys for Clients in Charlotte and Mecklenburg County 

The attorneys at Myers Law Firm have experience handling all the major family law issues that surround the end of a marriage, including alimony, child custody, child support, property division, and divorce. We’re here if you need help. Call our offices at 888-376-2889 or fill out the contact form on our website. 

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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