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New York Same-Sex Spouses Divorce: Child Custody Considerations

According to a study published in 2013 by Dr. Nanette Gartrell and Dr. Jack Drescher, there are 690,000 same-sex couples living in the U.S. and 19 percent are raising children under the age of 18. In June 2015, the Supreme Court gave its opinion in Obergefell v. Hodges, sanctioning homosexual couples the constitutional right to marry. Since then, more than 123,000 same-sex marriages have taken place, according to Gallup. However, with all relationships, whether same-sex or heterosexual, not all of them last forever. Some same-sex spouses may find themselves facing the challenges of divorce, especially in breakups that involve children, who may not have a biological connection to one or both of their parents.

Child custody rights vary, depending on the spouse’s relationship to the child. In New York, both spouses are considered legal parents when:

  • • The spouses bear the child while they are married, in a registered domestic partnership or civil union
  • • The child was jointly adopted by both spouses or the non-adoptive or non-biological parent adopts the child
  • • A parent-child relationship is established through a parentage action, a legal proceeding in which a man or woman is officially deemed to be the father or mother of a minor child

Legal parents have equal rights and custody issues related to the child are handled the same way as they are in a heterosexual divorce, in which a judge would review different factors to determine what is in the best interest of the child.

In instances where only one spouse is a legal parent of the child, the second parent has no parental status, custody or visitation rights. In many instances, a court will rule in favor of the biological parent and grant him or her full custody rights, regardless of the partner’s involvement in the day-to-day living and raising of the child during the relationship. Second parents are also rarely obligated to pay financial support to their partner’s children. However, in some states, the court will recognize the second parent’s intent to conceive and raise the child, or the established relationship with those children.

Navigating the complex legalities surrounding same-sex divorce and child custody can be difficult. The experienced New York same-sex divorce attorneys at Larry McCord & Associates, LLC can guide you through the divorce process and child custody proceedings. Please contact Larry McCord and Associates, LLC at (631) 643-3084 Larry McCord and Associates, LLC at (631) 643-3084 to learn more about the firm’s services and approach to divorce and family law.

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