In 2015, the Supreme Court of the United States made same sex marriage legal, meaning that LGTBQ couples now enjoy the same, basic rights to marry and divorce as hetero couples—no matter which state they live in. 

Theoretically, these considerations also apply to parental rights, too, including custody. (After all, children are a pretty big part of family relationships.) However, same sex custody isn’t always as cut and dry, and same sex couples often face unique challenges in custody disputes.

Here’s what you need to know about same sex custody in California, and how the Maples Family Law team can help you resolve these important matters during a divorce. 

 

Same Sex Custody: The Basics

Child custody is a legal term that encompasses the wide range of rights and responsibilities that a parent has, in relation to their child. Specifically, it refers to a parent’s right to make decisions for that child, and to have contact with them, while young. 

In a custody dispute, a judge will grant legal and physical custody to parents either together (as “joint custodians”), or to one parent, alone (called “sole custody”). Based on these decisions, visitation and child support obligations will then be assigned, accordingly.  

Theoretically, this child custody process should apply to parents the same, regardless of sexual orientation. The reality is, though, that many states fall short in recognizing that—even when applied “equally”—child custody laws are inherently discriminatory against same sex parents. (Largely due to the fact that, in a same sex partnership, only one parent can be a child’s biological parent.) 

California legislatures have attempted to remedy these inherent discriminations, by creating child custody laws that are gender neutral and inclusive to all parents, regardless of sexual orientation. 

That being said, same sex parents are still more likely to face challenges during a custody dispute—the range and extent of such problems generally revolving around the legal status of both parents, at the time of divorce.

 

Same Sex Child Custody Scenarios

The legal status of a child’s parents will be the best indicator of how easy it will be to settle custody. 

If both parents are legally registered, then the question of who has a claim to rights becomes relatively straightforward. If one parent isn’t legally recognized, however, things get more complicated. 

In a same sex partnership, this legal status generally presents as one of three main scenarios: 

1. The child is adopted by both parents, and both are registered as legal guardians. 
2. The child is born into a marriage, registered partnership, or civil union.
3. Same sex partners are unmarried, and only one of them is the child’s legal parent. 

Here’s a closer look at each of these scenarios. 

 

1. Child is Adopted by Both Parents

In the first scenario, child custody is a relatively simple matter (well, as simple as custody ever gets, that is). Once complete, adoption confers the same rights and responsibilities to adopted parents as biological ones—regardless of gender. 

Hence, same sex partners who have both legally adopted their child will each have an undisputed right to claim all the powers and responsibilities associated with parenthood, upon divorce.  

 

2. Child is Born into Marriage

In California, it doesn’t matter if you are in a same sex partnership, or a hetero one, if a child is born into your union, you are treated as the child’s legal parents, under the presumption of parenthood. 

California is one of very few states that have granted same sex parents this presumption. By allowing it, however, they’ve taken a huge step in helping to eliminate discrimination towards same sex parents. 

We should also note that this allowance doesn’t eliminate the rights of either of a child’s biological parents, either. As of 2014, as many as three parents can now be listed on a child’s birth certificate, thereby giving all parties involved the peace of mind in knowing their parental rights are protected.

 

3. Unmarried, Same Sex Parents

Finally, we have unmarried, same sex parents—a situation where either the biological parent is the child’s only registered parent, or else a non-biological, adopted parent is the only legally registered parent. 

Out of all our scenarios, this is the most precarious place for same sex couples to be, because here, only one half of the duo is recognized as the child’s legal parent. These are co-parents who never had a chance to assert parental rights at a child’s birth (or adoption), but who—nonetheless—played a pivotal role in the child’s upbringing and development. 

To answer these questions, California courts turn to the doctrine of psychological parenting. 

The Doctrine of Psychological Parenting

This doctrine recognizes that a co-parent doesn’t necessarily have to have legally adopted a child for them to have fulfilled that role in a child’s life. This principle places the best interest of the child above the need for strict, legal formalities, and—in some situations—will grant a non-biological/non-legal co-parent parental rights, without requiring a formal adoption.

In California, a parent who qualifies under the doctrine of psychological parenting is called a “de facto parent.”

 

De Facto Parents

Not everyone in this situation will qualify as a de facto parent (in fact, more likely than not, the cards will be stacked against you). Instead, the court will seriously evaluate a number of different things, including whether:  

• Whether the non-parent lived in the same house as the child.
• Whether the child’s legal parent was aware of—and consented to—the formation of a parent/child bond. 
• Whether the non-parent took responsibility for the child’s development, care, education, and financial needs. 
• Whether the relationship lasted long enough for the child to form a parent/child bond with the non-parent adult. 

As you can see, becoming a de facto parent isn’t a foregone conclusion, and requires more than just a romantic relationship between partners—one of whom just so happens to have a child. 

Still, why would the court uphold de facto rights at all? Isn’t that kind of strange? (We’ll give you a hint: it has nothing to do with you…) 

 

Best Interest of the Child

If you answered with, “Because it’s in the child’s best interest,” then you’d be correct. 

In all cases of child custody—not just those involving de facto parents—the court’s driving motivation is to find the arrangement that will best serve a child’s long-term happiness, health, and wellbeing. And if that child has formed a bond with someone who has acted like a parent, looks like a parent, and smells like a parent, then the court figures it’d be pretty damaging to separate that child from that person, even if the relationship was never formally recognized through adoption. 

That being said, LGTBQ parents in this situation still face an uphill battle—especially if paired with a judge who has strong prejudices against same sex relationships. That’s why, when dealing with same sex custody, it’s so important to hire a family law attorney you can trust. 

 

Same Sex Custody Attorneys in California

In theory, same sex couples have the same rights to marry, divorce, and parent as their hetero counterparts. However, despite lawmakers’ best efforts, the practical execution of these laws doesn’t always pan out the way they’re meant to, which is why you need an experienced family law attorney to help fight for your rights. 

If you have more questions about same sex custody in California, we want to hear from you. Call the Maples Family team at (209) 989-4425, or get in touch online, and let us help ensure the best interest of your child is met.