Child Custody and Divorce in a Same-Sex Divorce

Since same-sex marriage was recognized in individual states and then eventually made the law of the land by the Supreme Court in the 2015 Obergefell decision, same-sex couples were finally given the same rights as heterosexual couples when it comes to marriage, divorce, and child custody. However, many years of denial can still have an impact on couples' rights.

Same-Sex Married Couples Custody Rights at Birth

While same-sex couples are entitled to get married and share custody of children, same sex custody rights still involve additional hurdles. Whenever a heterosexual couple has a child, the rule is that any child born into the marriage is a legal child of both parents. This same rule technically applies to same sex couples, but in general, attorneys advise clients to take extra steps to ensure both of them have legal parentage. 

This is evident when one examines the ways a same-sex married couple can become a family and the legal pathways involved:

  • One member of the married same sex couple gives birth to the child (generally through artificial insemination): In this situation, both parents are automatically legal parents (any child born into a marriage is a legal child of both parents), although some attorneys may recommend taking additional steps (such as a second parent adoption) to protect the relationship between the non-biological parent and the child, even though they may be named on the birth certificate, should there be any question about rights since this is still a new and developing area of law. 
  • A married same-sex couple adopts: The adoption process is the same as for a heterosexual couple, and both same sex spouses can adopt the child and become legal parents together.
  • Surrogacy: Often, the surrogate can designate one of partners as a legal father through an acknowledgment of paternity or a pre-birth order. The other parent may be advised to complete a second-parent adoption, even though they may be named on the birth certificate.

The Legality of Pre-Obergefell Marriages

Any same sex couple that married after the Obergefell decision is legally married and can get a divorce. Children who are legal children of both spouses (as described above) are children of the marriage and custody is decided as part of the divorce. However, things get complicated when a couple was married or living like a married couple before the Obergefell decision. How many years are they considered to be married? Must they actually perform a new marriage ceremony completed after Obergefell to be legally married? Courts are still trying to sort out all the legal ramifications.

An important issue that is evolving has to do with couples who entered into a marriage before it was legal in their state or under Obergefell. Courts are split about whether the marriage can be considered to have existed before it was legal in their state. Connecticut, New Hampshire, Rhode Island, Delaware, Illinois, Washington, and Hawaii have passed legislation that recognizes same sex couple's legal date of marriage as the date they originally married (before it was legal to do so) or entered into a domestic partnership, even if it was before Obergefell or state laws allowing same sex marriage. In many states, the issue is still up to the courts. 

The South Carolina case involving Debra Parks offers one example. Parks was in a forty-year relationship with her partner, which ended in 2017, post-Obergefell. The couple lived together, shared assets, and acted like a married couple. Parks sued to have their relationship treated as a common law marriage and won, even though they never had a marriage ceremony, pre or post-Obergefell.

Other couples have not received the same treatment. In 2017, Ferry v. De Longhi America, Inc decided in California that the same-sex couple had been together since a 1993 commitment ceremony. One of the spouses died soon after same sex marriage was a legal option. Because the couple did not obtain a legal marriage before the death, they were found not to be a married couple for the purposes of a wrongful death action. 

Custody and Pre-Obergefell Marriages

When a couple has been in a married relationship that pre-dates Obergefell, the legality of the same sex marriage becomes an even more complicated issue when child custody is part of the case. 

In the case of In the Marriage of Dee J. and Ashlie J. (decided in IL 2018), a same sex couple married in Iowa in 2008, but lived in Illinois where their marriage was not recognized as legal, and Obergefell had not yet been decided. They then welcomed a child via birth to one partner using artificial insemination. The non-biological parent was listed on the birth certificate, and they lived together as a family unit, parenting the child together. The couple later divorced, and the non-biological parent sought custody rights. 

Because the child was born before same-sex marriage was legalized, the child was not legally considered a child of the marriage. However, the Illinois court held that both parents were legal parents and had custodial rights to the child, even though they were not legally married at the time of the birth. 

Same Sex Unmarried Custody Rights at Birth

When an unmarried same-sex couple welcomes a child by birth to one of the spouses, the non-biological parent will may need to complete a second-parent adoption to formalize their rights, even if their name is placed on the birth certificate, just to ensure that parentage is completely protected. If the child is welcomed through adoption, both unmarried parents will need to formalize the adoption. 

Custody Cases for Unmarried Couples

In general, if an unmarried same-sex couple has taken the legal steps necessary to confer legal parentage on both partners (through second parent adoption), custody is treated as it would be with any other couple. Both partners are parents with equal rights to the child (there is no presumption against either parent) and the court will determine custody based on what is in the best interests of the child. However, there is growing evidence that courts are willing to provide expanded rights to same sex couples who have acted as parents, even if their legal rights may not have been completely obtained.

In re Madrone, decided in 2015 in Oregon, the court held that a same sex couple who welcomed a child by artificial insemination were both legal parents of the child even though they were not legally married at the time of the birth.  That court stated that the test should be whether the couple would have gotten married if they could have.

Ongoing Concerns from Pre-Obergefell

While the legal path forward is now clear – same-sex couples have the same rights as heterosexual couples, implementing that is challenging. If a couple has been together since before Obergefell and before marriage was legal in their home state, what date did their marriage legally start? Will there be widespread recognition of the years a couple spent together before the laws changed? There are many unanswered questions in this evolving area of law. 


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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