Determining child custody and child support for same sex couples can be complicated because courts have to consider biological parents and surrogate parents, or those who operate as parents, when making a custody determination.
State Laws Regarding Same Sex Parents
Most states do not recognize homosexual marriages and unions. There are often custody complications when a homosexual parent who has lived in one state--which recognizes the union of homosexual couples--separates and moves to a new state, with the expectation that the new state will recognize a custody agreement, created in another state. Technically, the new state should absolutely honor the agreement, created in another state. However, the state may be reluctant to remove a child from a biological parent and place him/her with a non-biological parent. Exceptions do exist. For example, in the case of Lisa Miller and Janet Jenkins, custody was granted to the non-biological parent.
Child Support and Same-Sex Parents
Some courts determine that a parent who agrees to start a family with a homosexual partner, with plans to raise the children together, is a parent and is, thus, responsible for child support. A court will consider initial intentions of the partners, evidenced by factors such as:
- Partner's attendance at doctor's appointment and Lamaze classes during pregnancy
- Whether both parents held the child out to their families as an extended member of the family
- Whether the child was legally adopted by one, or both, parents
Adoption and Same-Sex Parents
Some courts have decided that non-biological parents who do not adopt their partners' children are deemed "non-parents" in custody and visitation determinations. Therefore, non-biological parents in same sex relationships should consider adopting the child to obtain a legal relationship with the child. In the event of a custody battle, the court may consider an adoption to be a stronger legal connection to the child. In terms of adoption for same-sex partners, courts will consider:
- The consent of the biological parent
- The emotional connection to the child
- Financial support of the child
It's definitely a fact that some states are more liberal in making custody and support decisions for same-sex ex-partners. Even though all courts should honor the custody and support orders determined by other states, a state does have the option of challenging an order that originated in another state. Separating same sex parents should prepare themselves for an uphill court battle. However, in the end, both parents should continue to provide for their child, as best as possible.