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Same Sex Marriage with Biological and Non Biological Legal Parent's Rights Issues

Going through a divorce is a difficult task where two individuals must accept the division of goods and child custody regulations. Same-sex parents must endure a long process in order to become legal parents of a child. When a divorce is filed and children are present, the court must analyze many factors to determine which party will receive child custody. Like with different-sex couples, where both are biological parents, there are many issues that arise when child custody is at the forefront of the divorce.

The San Diego Family Law Attorney understands the difficulties that arise when same-sex couples are fighting for child custody. Some cases are complicated especially when non-biological parents are requesting to keep the child. Biological parents in these cases tend to have more rights for custody than the other parent. However, there have been cases where the non-biological parent was able to prove enough of his presence in the child's life as a parent to fight for custody.

These cases require strong and sensitive attorneys who are specialized in dealing with same-sex parent child custody issues. Though same-sex marriage has been protected in the State of California for a very long time, it is not guaranteed that all courts will understand the delicate attributes of the situation. The San Diego Family Law Attorney Firm is committed to providing reliable representation in matters of same-sex parent child custody disputes. We are ready to defend your right as a parent to provide you the right to remain a part of your child's life.

Same-Sex Parents and Child Custody Factors

Same-sex couples have a lot to think about when filing for divorce. Who will receive child custody, who will provide spousal support, and how will assets be shared? The court of law has established ways in which individuals can file for spousal support or share assets. There are many factors that are considered when deciding who will gain child custody between same-sex partners. The court will analyze the case differently if the child was adopted (by both or by one of the parents), if the couple used a surrogate, if the child was conceived through sperm or egg donation, and if the child is from a different relationship. Depending on the process, these factors affect the way in which the court will decide child custody. If you are a nonbiological parent and you wish to maintain close ties and jurisdiction over your child, it is crucial to have submitted documents that prove the nonbiological parent is involved in the child's life.

ADOPTION: If the child was adopted under any state in the United States, the parent who signed the paperwork, is most likely the parent who will gain custody of the child. Even if you played a significant role in raising the child, the court will not adhere to your case if there is no legal documentation proving you existed in the child's life. If you were present in your child's life and find yourself in a custody dispute, you should contact your local attorney to discuss possible ways of proving yourself as a legal guardian of the child. With enough proof, you may be able to fight for child visitation and child custody rights.

NATURALLY CONCEIVED: If the child was conceived through a surrogate or sperm/egg donation, the child is biologically connected to one parent. The parent who provided the sperm or egg or the parent who conceived the child is entitled to claim the child in court. Non-biological parents who did not adopt the child or who failed to sign the certificate of birth may face issues regarding child custody. To establish your rights as a parent and to establish your rights to child custody in the case of a divorce, you must become a legal parent.

Legal Parents

In divorce cases dealing with child custody rights, the Lesbian, Gay, Bi, and Transsexual (LGBT) community has legal ways in which non-biological parents can fight for child visitation and child support rights. Before ending a relationship involving a child, the non-biological parent (if he or she wishes to maintain legal rights over his or her child), should become a “legal” parent.

A legal parent is a person who is recognized by law to be the child’s parent. A legal parent has gained rights over his or her child through adoption, through birth, and through other legal means. Legal parents are allowed to make decisions regarding the child’s education, well-being, and health. In many states, a person who is not considered the legal parent may not have the right to fight for child support or visitation rights. Even if the non-biological or nonlegal parent lives with and cares for the child, he or she may be unable to request documentation of the child and be unable to fight in a court of law for his or her child custody rights.

In both heterosexual and homosexual relationships, both ‘legal’ parents have the lawful right to fight for child custody in any court of law. If the couple was married or an adoptive child was brought into the relationship, both parents are presumed to be the legal parents of the child. However, if you were in a married relationship, civil union, or in a domestic partnership, it is still highly advised to have adoption documentation for the non-biological parent. This will help you fight for your child custody as a ‘legal’ parent. Again, legal parents have the most advantage over a child custody dispute when the other person is not registered as a legal parent.

Second Parent Adoption

The most common way to protect your parental rights and to become the legal parent of your partner's child is to opt for ‘second parent adoption’. This legal action allows a same-sex partner to legally adopt and become a parent of the partners biological or adoptive child. Second parent adoption allows the child to have two legal parents and in turn allows both parents certain rights in case of a divorce. Both parents are legally recognized and both parents are lawfully protected when fighting for child custody.

In all second-parent adoption cases, the parent seeking to become a legal parent will need the consent of the first parent to continue the legal documentation. If the first parent refuses to give consent to the other partner, the proceeding is considered ‘contested’. If your partner contests the adoption petition you may only be able to adopt if under two circumstances.

  • In contested cases, you may adopt if you find a way to prove that it is in child's best interests.
  • In contested cases, you may adopt if you can prove the other parent has neglected his or her parental responsibilities.

Before a judge can grant the requesting parent with adoption rights, the judge will need to consider if the adoption is in the best benefit of the child. The court will typically require a “post placement report” and a physical and mental record of the child's health. The report will ultimately, provide information about the prospective legal parent's criminal history, the family lifestyle, the environment at home and other factors that may determine if an adoption is in the best interests of the child.

In addition, non-biological parents have the option to obtain parentage judgment through the Uniform Parentage Act. In states like California, non-biological and non-adoptive parents can be legal parents given certain circumstances. In some states, non-biological parents are considered de-facto legal parents under parentage codes if they can provide proof of living with the child or providing ‘psychological support’. Every state has fine points regarding their take on who is or who is not a legal parent. To avoid child custody issues if you are a non-biological parent, it is important to obtain legal documentation as a parent.

Many states across the country do not process second-parent adoption or parentage petitions. If you are residing in a state that does not allow you to legally become a parent of a child that is not biologically yours, you and your partner may opt for a parenting agreement. A parenting agreement will allow the second parent to have exclusive custody rights. Though this document does not legally recognize the other spouse as a parent, in a court of law, it may help win child support and child visitation rights.

Child Custody and California Family Code 3011

The California Family Code 3011 establishes ways to determine the best interests of the child in case of a divorce proceeding. The Family Code 3011 is used as a guideline for child custody disputes throughout California courtrooms. The California court considers many relevant factors pertaining to the child's life when making a child custody claim including:

  • The child's well-being (safety and history of health)
  • Any history of abuse by the parent seeking custody or his or her partner
  • For any allegations of abuse, the court will require any written documents that allow the court more information on the subject at hand.
  • The nature of the relationship between both parents
  • The location of the school and other facilities where the child frequents (involvement in the community)
  • The presence of illegal substances in the child's life. The court will take into consideration any history of illegal use of controlled substances by either parent seeking for custody.

After considering the above factors, the court can decide that both parents are not capable of keeping the child. In these cases, the court grants a third-party guardianship over your child. If the court deems either parent unable to care for the child, the parents may still have the right to visitation. Please consult your local attorney to learn more about the laws pertaining to guardianships.

Children at the age of reason

Courts throughout the United States also take into account the wishes of the child to determine his or her best interests and therefore determine the best child custody resolution. Children who are over the age of eighteen have the most leverage and can contribute the most to the child custody resolution. Emancipated children have legal adult status and they are able to choose where he or she will go to school, the type of medical coverage, and how he or she will handle her or his private assets. A child not at the age of 18 may emancipate themselves if they meet certain factors.

The court will consider emancipation of a child if:

  • The child is over the age of 14 years
  • The child is making his or her own money (legally making money)
  • The child is able to handle his or her own expenditures
  • The child is determined to move from foster care or from the parent who was granted custody

The child custody procedures are the same for parents in a homosexual or heterosexual relationship. In child custody disputes both parents must come to an agreement on how they will share and take care of their child. In order to do so, parents must file legal paperwork and must come to an agreement in or outside of a courtroom. Dealing with these issues outside of a courtroom through a mediator is the best option to determine how assets and child custody will be shared in the event of a divorce.


The state of California has dealt with same-sex issues for longer than many states within the United States of America. The court is obliged to practice anti-discrimination laws and treat every case fairly and to provide just jurisdiction over these sensitive matters. However, it is not uncommon to find judges who feel uneasy about homosexuality. In cases involving a child custody from a previous heterosexual relationship, the unsympathetic judge may become a considerable factor in the child custody case.

Whether you are a biological or nonbiological parent seeking custody of your child, please contact your local lawyer at the San Diego Family Law Attorney. Our experienced team of attorneys can provide you information specific to your case and provide legal guidance to protect your rights as a same-sex parent. The state of California is required to treat same-sex legal matters with fairness under the law as it would in any case involving heterosexual couples. California Family Code Section 3011 has been extended by the California Supreme Court to protect the rights of parents within a same-sex parent custody case. If you are experiencing any type of discrimination in a court of law, you should contact our experienced attorneys at 619-610-7425.

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