FAQs About Same Sex Custody

Same sex marriage might be legal across the United States, but LGBT couples still face unique challenges in divorce and custody, where—even when applied the same—family laws often contain inherent discriminations that exclude same sex couples.  

This is particularly true in child custody, where the presumption of parenthood falls short of the mark for same sex parents, prompting a lot of head-scratching questions about how same sex custody actually works in California. 

Luckily, we’ve got you covered. 

Here are answers to some of the most commonly asked questions about same sex custody in California, and how Maples Family Law can help with these important matters.  


How Does California Handle Same Sex Custody?

During a same sex custody dispute, there are four main issues that the court will need to address, they include deciding: 

  • Which parent(s) will have legal custody.
  • Which parent(s) will have physical custody. 
  • The terms and conditions of visitation for the child’s non-custodial parent.
  • How much child support will be paid by the child’s non-custodial parent.

Here, your judge will assign legal and physical custody either to one parent, alone (called “sole custody”), or to both, together (in “joint custody”). This split will be made by examining a number of individualized factors, and decided according to your child’s best interest.


What Factors Does the Court Consider During Child Custody?

No two families are ever the same, which means that when it comes to child custody, no set formula can apply to every situation. 

Instead, the court will make custody decisions by weighing a number of different factors against potential outcomes, such as: 

  • The child’s relationship with both parents.
  • The child’s emotional and psychological needs. 
  • The child’s physical, medical, and educational needs. 
  • The child’s relationship with other members of the immediate households. 
  • Each parent’s ability to care for their child. 
  • Any history of domestic abuse, violence, or neglect.
  • Which parent seems most likely to encourage a relationship between their child and their child’s other parent. 

At the end of the day, your judge will choose—not necessarily the outcome you want—but the one they think will best suit your child’s long-term health and happiness.


Are the Rights of Same Sex Parents Different from Hetero Parents?

No. In California, it does not matter whether parents identify as hetero, or LGBT. Parental rights are the same, regardless of sexual orientation. The same is true for child custody laws, which are applied the same, regardless of the parental matchup. 


If the Laws Are the Same, Then Why Do Same Sex Couples Have More Problems During Custody Disputes? 

If both parents are legally registered parents, then (theoretically) their custody dispute shouldn’t have any extra problems. The problems—when they arise—occur when only one parent is legally recognized. 

Many family laws are inherently prejudiced against same sex relationships, meaning that—even when they’re applied “equally”—the results affect LGBT parents differently.

This is especially evident with the presumption of parenthood, which states that only a child’s biological parents can claim rights at the child’s birth. This inevitably excludes one parent in a same sex relationship, requiring them to adopt before they’re granted parental rights.

California legislatures are working hard to eliminate inherent prejudices such as these. 


What is California’s 3rd Parent Law?

The “3rd parent law” refers to a 2013 change to California’s family code, which upped the number of legal parents allowed on a child’s birth certificate from two to three.

Yes, you read that right. In California, three parents can be listed on any of the three (gender-neutral) parent lines. 

This radical new change allows both partners in a same sex marriage to assume parental rights over their child, without the need for adoption. At the same time, it also safeguards the rights of the child’s other biological parent.


What About Unmarried, Same Sex Partners?

A couple does not have to be married to take advantage of California’s 3rd parent law. Registered domestic partners, as well as long-term (unregistered) partners can also claim rights under these rules.  

However, the 3rd parent law isn’t a failsafe catchall. For example, it doesn’t specify what should happen when a couple’s relationship begins after the birth (or adoption) of a child, and the non-biological parent never formally adopted.

There is no easy answer for same sex couples in these situations, however, one solution might be to argue for rights as a de facto parent.  


What is a De Facto Parent?

A de facto parent is someone who has assumed the role of a parent long enough to have formed a strong, parent/child bond with a child that is not legally theirs.  

To determine whether this relationship exists, the court will analyze the situation, to see if:  

  • The non-parent ever lived in the same house as the child. 
  • The child’s legal parent was aware of and/or encouraged a parent/child bond.
  • The non-parent took responsibility for the child’s daily care, social development, education, financial needs, and health.
  • The relationship lasted long enough for a parent/child bond to form with the non-parent adult. 

Needless to say, de facto parents have an uphill battle, and you won’t qualify just because you were in a relationship with someone who happened to have a child. 

California courts will only grant this status when doing so serves a child’s best interest—or, in other words, when not granting these rights would essentially cause the same, psychological harm as it would to keep a child away from their legal parent. 


How Can I Avoid Same Sex Custody Problems?

Most same sex custody problems happen because one of the parents is not legally recognized at the time of divorce. Hence, the single biggest thing couples can do to avoid these issues is to make sure both are legally recognized as soon as possible—even if that means formal adoption.

If that ship has already sailed, try to avoid waging a parentage battle in open court, where you could easily end up with a prejudicial judge. Instead, we suggest mediation (which is almost always better, anyway). 

At the very least, always try to remember to put your child’s emotions and needs before your own.


Same Sex Custody Attorneys in California

If you have more questions about same sex custody in California, and how these laws might apply to your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your parental rights are protected.