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Who Gets the Kids in a Same Sex Divorce?

by | Jul 19, 2022 | Uncategorized |

In a same-sex divorce where the spouses have minor children from the marriage, those parties should in theory be able to expect that they will be treated equally—just like any heterosexual married couple getting divorced with minor children from the marriage. While same-sex marriage has been legal in Michigan since the U.S. Supreme Court decision Obergefell v. Hodges (2015), there are many issues with child custody than can affect same-sex couples unequally and unfairly in a divorce. It is critical to work with a Michigan divorce lawyer on child custody matters if you are planning for a same-sex divorce because there are certain issues with which you may need to contend. 

Child Born During the Same-Sex Marriage

If your child was born during your marriage, you might assume that your child custody case will move forward the same way as a heterosexual child custody case in a divorce. However, there are various situations in which questions of parental rights could arise.

For example, if you used a sperm donor and one of the spouses got pregnant and gave birth to the child, it is still beneficial in Michigan for the parent who was not pregnant (and did not give birth) to formally adopt the child. It is important to know that, in this type of situation where one parent got pregnant and gave birth during the marriage legally means that both spouses have parental rights, both spouses do have legal rights as parents without a formal adoption. However, without a formal adoption by the non-biological parent, the parent who gave birth could allege that they did not intend for their spouse to be a parent, and that the decision to get pregnant was theirs alone. 

Or, for instance, if both spouses used a surrogate or went through an adoption, even if that occurred during the marriage, it is critical that both parties adopted the child in order to have legal parental rights.

Child Born Prior to the Marriage

If one of the spouses either conceived or adopted the child prior to the marriage, the other spouse will have no legal rights as a parent unless they adopt the child through a stepparent adoption.

Child Custody Determined According to the Best Interests of the Child

Once the court determines that both spouses in a same-sex marriage have legal parental rights, then the child custody determination will work the same way it would for a heterosexual couple. The court will consider what is in the best interests of the child in determining custody and parenting time.

Seek Advice from a Michigan Divorce Lawyer

Whether you have questions or concerns about same-sex divorce and child custody in Michigan, or you need help with your child custody case that will arise as part of your same-sex divorce, it is critical to seek advice from one of our Michigan divorce lawyers. An advocate at our firm can evaluate your particular circumstances today and can provide you with more information about whether you will need to take additional steps to ensure that you have parental rights following a same-sex divorce. Contact the Law Offices of Michael A. Robbins for more information.