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Same-Sex Child Custody in New York City

What Happens When Same-Sex Parents Divorce?

Now that same-sex marriage is legal in New York City, LGBT couples can fulfill their dream of marrying and enjoying all the legal rights and responsibilities that come with the bonds of matrimony. One of these rights is the right to pursue child custody in the event that the marriage ends in divorce. This is likely to be an increasingly common issue in the family law courts in New York as time goes on.

A 2010 study based on the U.S. Census found that approximately one-quarter of all same-sex couples nationwide were raising children, and this figure may be significantly higher in this state since the passage of the Marriage Equality Act in 2011. There is nothing fundamentally different from a about a child custody case where same-sex parents are involved-both parents have a right to pursue joint or sole custody, child support and rights of visitation-but there are some issues which may make the matter more complicated.

If the child was born into the marriage through in-vitro fertilization, a surrogate mother or other means, there should not be any complication, as both spouses will normally be recognized as the legal parents. The same is true if you both adopted the child, whether the adoption occurred before or after you married, as long as both parties are legal parents than both have a right to claim custody.

If one spouse already had the child from a prior relationship, the situation may be more complex. Unless, the non-biological parent formally adopted the child, he or she will have no legal rights or responsibilities in respect to the child, regardless of how long the marriage has lasted and how long the person has acted in the role of a parent. When this is the case, the non-biological parent may still request rights, but the position will not be as strong as if there'd been an adoption.

Step-Parent Adoption for Same-Sex Couples in New York City

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The solution to this problem is for the non-biological parent to carry out a step-parent adoption. Though this is not always possible, it allows the individual to become one of the child's legal parents and makes it possible to pursue custody in a divorce. It also means that the adoptive parent may be liable to pay child support.

Step-parent adoption is possible in cases where the other biological parent has had his or her parental rights terminated due to child abuse or similar factors, or when the other parent consents to termination of rights. In cases where the other party is an absentee parent who has made little or no attempt to be involved in the child's life, formal consent may not be necessary provided that notice of the impending adoption is served early enough in advance.


To learn more about step-parent adoptions and child custody, contact Eiges & Orgel, PLLC today.


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