Same-sex couples have only had federal protections recognizing their unions in place for a few years. While some states, like California and Vermont, allowed for same-sex marriages prior to the Supreme Court decision in the 2015 Obergefell v. Hodges case, same-sex marriage is a relatively new social construct in much of the United States, including Ohio.
Unfortunately, that also means that same-sex divorces are relatively new territory for many courts. With a rise in same-sex marriage, it was only a matter of time before there was substantial demand for same-sex divorces. While certain considerations, like asset division, remain relatively straightforward in same-sex divorces, issues like child custody and support may prove to be much more complicated for the courts.
Planning ahead could make divorce and custody issues simpler
Ideally, both spouses in a same-sex marriage agree to specific terms regarding the raising of children before the marriage. In a perfect world, couples would create a prenuptial agreement that protects the rights of both parents in relation to any children that result from the same-sex marriage. Sadly, many couples do not plan for the potential of a divorce, leading to protracted and difficult divorces and custody battles.
If you don’t have a written prenuptial agreement and you can’t agree on shared custody or visitation terms with your spouse, the courts will have to decide. That process can end up complicated and problematic, especially in cases where only one parent has a biological or genetic connection to the children.
Establishing paternity may be difficult in same-sex marriages
One way that same-sex custody issues often differ from heterosexual marriages is that it is very common for only one parent to share genetics with the children. In some cases, one parent could carry and birth the child, while both spouses work to support and raise the child. Other times, one spouse may have contributed semen used for artificial insemination or in vitro fertilization of a surrogate.
Sometimes, children raised by a same-sex couple are the product of a previous marriage or adoption. That can mean that only one of the spouses has a legal or blood tie to the children. Unless the non-biological parent legally adopted the children, the courts will likely view the non-biological parent as a stepparent who has little claim to visitation or shared custody. You may have to work very hard to prove you have a critical parental role in the children’s lives.
There are, of course, exceptions to this rule. Courts have found that non-biological parents in same-sex marriages may have a right for shared custody or visitation. The flip side of that issue, of course, is that they are also responsible for paying child support. Whatever the nature of your connect to the children in your family, you should explore your options carefully before filing for a same-sex divorce.
