Barbara J. Katzenberg, Attorney at Law

Child custody may prove contentious in same-sex divorce cases

While same-sex couples face similar stumbling blocks in their marriages as those faced by heterosexual couples, the legal obstacles are possibly more challenging. This is especially true when there are children involved in a same-sex divorce. Whether it is a couple in Massachusetts, where same-sex marriages are legal, or any other state, the legal challenges related to same-sex child custody are still many.

Two women in another state settled on having a family after several years of living together. After one of them had given birth, they decided for the other woman to adopt the baby so both could be considered parents. This was done legally in 2012, and the woman who did not give birth to the child changed her surname in order for both parents and child to share the same surname. Unfortunately, the partnership did not last, and the birth mother returned to the court with a request to have the adoption nullified. A circuit court judge ruled accordingly.

The non-birth mother appealed, and after not seeing her child for about 18 months, the appeals court recently ruled that the circuit court judge erred in her decision to reverse the adoption. The parental rights of the disadvantaged mother were restored, and the circuit court judge was ordered to arrange more hearings to establish a parenting plan. The plan should be workable in routine issues relating to custody, support and visitation.

The appeals court and other authorities pointed out that children are not pieces of property to be handed out when a relationship ends. Couples in Massachusetts who are considering a same-sex divorce or the end of a partnership may want to acquire knowledge of the current laws of the state relevant to child custody and visitation. If reaching a mutual agreement proves impossible, mediation may be a suitable option to resolve issues and work out parenting plans to suit both parties.

Source: Orlando Sentinel, "Court upholds lesbian adoption rights", Rene Stutzman and Susan Jacobson, May 23, 2014

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