Child custody cases involving lesbian, gay, bisexual, or transgender parents are often more complicated, legally speaking. As written and practiced, the law can be unfair to LGBT parents due to the legal relationships between the parents and the children. What’s more, the legal rules regarding child custody for gay and lesbian parents continue to change over time, making matters even messier. Because of the complexities, it is wise if both parents reach a compromise on child-related issues, get joint custody arrangement, and avoid submitting the case to the legal system. If they fail to reach a resolution, they’ll have to take their custody battle to court. The court will make determinations and conclusions based on the best interests of the child.

How the Courts Determine Child Custody in Traditional Cases

Under traditional circumstances, the courts will consider the best interests of the child or children first.To determine the best interest of the child, the mental and physical health of both parents is factored in, as well as the familial and community connections the child has developed, developmental needs of the child, and whether abuse was present in the family home. In some cases, the wishes of the parents or the children are also considered. 

Child Custody if Both Partners are Legal Parents

 Both partners in an LGBT family may be legal parents of a child if:

  • Both partners jointly adopted the child.
  • The child was born into a registered domestic partnership, marriage, or civil union in a state where the non-biological parent is granted parental rights.
  • The non-adoptive or non-biological parent adopted the child through a stepparent adoption or step-parent adoption
  • The non-adoptive or non-biological parent established a child-parent relationship through a parentage action.

A second parent that has adopted a child is on equal footing with a biological parent and can be granted custody, visitation, or support rights. When both parents have equal rights, child custody cases are handled the same way as straight divorce. The judge will consider the child’s best interests and an assortment of other factors, including the length of the relationship between the parents, the parents’ intent to co-parent, and a parenting agreement where one exists.

Child Custody if Only One Partner is the Legal Parent

If one party in a same-sex relationship or marriage is the child’s biological or legal parent, things will be different. A biological or adoptive parent has presumptive custody rights. A second parent will not be granted custody or visitation rights if they haven’t adopted the child. In some cases, the second parent has no right to raise or make decisions regarding the child. The parent cannot seek custody or visitation and will be regarded by the court as a “third party.” Second parents rarely have to pay child support, although the second parent would be glad to help financially in contested cases. Some courts, however, may allow the second parent to have visitation rights if the parent has played a pivotal role in raising the child and established a relationship with the child.