Child Custody Issues When Ending Same-Sex Relationships

If you are in a same-sex relationship and have children, and your relationship is coming to an end, you may face some tough challenges. The law in most states, including Florida, does not treat same-sex and opposite-sex couples the same, and laws governing same-sex family law are in constant flux.

The first thing to know is that you should make every effort to reach a mutually-agreeable compromise on all issues related to your children. This may involve simple, honest communication between partners, couples or individual therapy, a custody mediator, or the help of an attorney. Try to avoid taking your custody battle to court, which can often harm the relationships between not just you and your partner, but between the children and both parents. A method of divorce becoming more widespread is called “collaborative divorce,” which boils down to compromise, agreement, and a lack of litigation. Regardless of your marital status, cooperation between partners is always preferable to an adversarial relationship.

If you cannot reach a resolution in your child custody dispute and must go to court, here is what to keep in mind.

If Both Partners are Legal Parents

Both same-sex partners may be legal parents of a child for any of these reasons:

  • The child was born into a marriage or civil union in a state where that relationship grants parental rights to nonbiological parents.
  • The nonbiological parent adopted the child.
  • Both partners adopted the child jointly.

When both partners have legal parental rights, courts will resolve child custody disputes as they would for opposite-sex couples. The best interests of the child will be held paramount, and a variety of factors will be used to determine this.

If Only One Partner is a Legal Parent

Most often, partners who are not legal parents have no parental rights at all, and cannot seek custody, regardless of the reason they are not legal parents. However, some courts have granted rights to second parents on the basis of the partners’ intent to raise the children together or the second parent’s relationship with the child. For instance, did the nonbiological parent attend doctor’s office visits and birthing classes with the biological parent? Did the second parent involve his or her family as members of the child’s extended family? These factors can influence judges to grant parental rights.

If you are a legal parent who wishes to deny your ex-partner child visitation or partial custody, carefully consider your motivation. If you genuinely believe that it is not in your child’s best interest to visit with your ex-partner, it is your right to pursue that. But the fact that your ex may be a flawed person or your inability to get along as a couple are not sufficient justification.

If you are a second parent, and your ex-partner wishes to deny you visitation or partial custody, find out with the help of your attorney whether your state will permit you to present a claim. If so, what steps must you take? If not, are you willing to try to forge new law? Are you willing to pursue your case up to an appeals court? This can be difficult and expensive, but it is often how laws are changed – an important aspect of our common law system.

No matter the legal status of your relationship with your partner or your child, remember to put the child’s interests first. In most cases, this means allowing the child to continue a relationship with both parents and maintaining a civil relationship of respect and compromise between partners.

Kristi J. McCart is a Tampa divorce lawyer and Brandon child custody attorney with the Osenton Law Offices, P.A. To learn more, visit