Barbara J. Katzenberg, Attorney at Law
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Biology can dictate child custody between same-sex spouses

Same-sex divorce can be very complicated, if there are children involved. Child custody can be difficult to settle if one of the partners is a biological parent of the child or children and, although the other is not, has developed a close bond with the child.

There are same-sex celebrity couples who have children by artificial means. In the case of David Tutera and Ryan Jurica, for example, they fathered two children through a surrogate mother. Each child was one of the partners' biological child. When the couple decided to divorce, the partners agreed that each one should take the twin that is biologically theirs. In this case, it is uncertain whether the children will get to interact with each other or to get to spend time with the non-biological parent.

In the case of straight couples, each parent has parental rights over the child, but a custody battle can still ensue. Custody can be arranged through family court or negotiation with a minimal amount of difficulty because each spouse is a biological parent. With divorced same sex spouses, that poses a unique challenge.

In a study that was published recently, regarding children of same sex couples outside of marriage, the study found that the relationship between a non-biological gay parent and his or her child could be weakened once the gay couple chooses to part ways. The study emphasized that legally, the biological parent has the right to custody.

Without protection, such as adoption, to establish the legal tie between a child and the non-biological parent, it can limit the parenting time spent by that parent with the child. There are ex-partners who co-parent and succeed in providing the same parental rights to a non-biological parent. However, although some people start out having an amicable situation, the arrangement changes over time and can result in less parenting time with the non-biological parent.

Non-traditional family matters can be tricky and can cause emotional pain, not only to the spouses, but also to the child in the middle. Settling child custody can help heal a child and maintain a healthy relationship with both divorced, same-sex spouses.

Source: The Huffington Post, "How Biology Matters When Same-Sex Couples With Kids Split Up," Abbie E. Goldberg, Oct. 12, 2013

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