Navigating Child Custody in Same-Sex Divorce: A Comprehensive Guide

Divorce is difficult for most couples. If you are in a same-sex marriage and share children with your spouse, you need to understand the additional complexities that could be involved. While same-sex marriage has been legal in New Jersey since 2013 and nationally since the Supreme Court's Obergefell decision in 2015, the laws surrounding child custody have still not caught up. Here's what you need to know about same-sex divorce and child custody from a divorce lawyer in New Jersey at Ziegler Law Group, LLC.

Unique Custody Issues in Same-Sex Divorce Cases

People going through same-sex divorce cases in New Jersey deal with unique issues that other couples might not have to worry about. A common problem is that only one parent might have a biological relationship with the child. The other parent will need to establish parental rights in some way to ensure he or she can receive visitation rights.

Step-Parent Adoptions

One way couples prevent child custody issues if their marriage subsequently ends in divorce is by going through a step-parent adoption. The non-biological parent of the child legally adopts the child. Once the adoption is complete, the adoptive parent will have the same parental rights as the biological parent in the event of a divorce.

In Loco Parentis

If a same-sex couple gets divorced, and an adoption was never completed, the non-biological parent might still be able to get visitation by presenting evidence that they have/he or she has a strong emotional and psychological bond with the child to the extent that the child views them/him or her as a parent. They could argue by arguing that they've/he or she has assumed parental obligations for the child and should be granted visitation because they served for serving a role of in loco parentis for the child.


The court will consider the relationship between the spouse and the child, the relationship between the two parents, the length of time the marriage lasted, how long the couple lived together, where the child lived, and the parenting expectations each spouse has. However, while it's possible to obtain visitation by arguing that you've served in loco parentis for your child, it's best to complete a second-parent or step-parent adoption during your marriage to protect your rights.

Child Brought Into the Marriage

If one spouse already had a child when the couple married, the non-biological spouse won't have any custody or visitation rights if the couple gets divorced. To avoid this issue, the parents might agree for the second parent to complete a step-parent adoption. However, the couple might have to deal with related issues, including getting the permission of the child's other biological parent and/or having their/the other biological parent’s rights terminated. This can be difficult to navigate and should prompt you to seek help from an experienced attorney.

Unique Custody Issues in Same-Sex Divorce

IssueDescription
Biological RelationshipOnly one parent may have a biological relationship with the child, necessitating legal steps for the other parent.
Step-Parent AdoptionsA legal process allowing the non-biological parent to adopt the child, securing equal parental rights.
In Loco ParentisA potential claim for visitation by the non-biological parent based on an established strong bond with the child.
Child Preceding MarriageThe non-biological parent has no rights to a child brought into the marriage unless a step-parent adoption occurs.

Marrying Same-Sex and Child Custody Considerations

ConsiderationDescription
Know Your RightsUnderstanding unique child custody issues in same-sex marriages in New Jersey.
Establish Parental RightsConsider stepparent adoption to secure custody rights for the non-biological parent.
Legal Options for CustodyFamiliarize with legal and residential custody, and the variations in sharing, splitting, or sole custody.
Create a Parenting PlanDraft a detailed parenting plan covering time division, co-parenting details, holidays, and other arrangements.
Child's Best InterestsEnsure all arrangements prioritize the child's best interests for a favorable court view and fair outcome.

Marrying Same Sex and Child Custody Considerations

If you're preparing to get married and plan to have children with your intended spouse, it's a good idea to take some steps to protect your rights and those of your children. While you might not envision getting divorced, it's still a good idea to ensure that both of your parental rights will be protected if your marriage comes to an end. Here are some things to do to protect your child custody rights when you're entering into a same-sex marriage.

1. Know Your Child Custody Rights

When you get divorced from your same-sex spouse, you might have to contend with unique child custody issues. The child custody and visitation laws in New Jersey are applied to same-sex couples a little differently than they are to heterosexual couples going through a divorce.

Children of same-sex couples are typically conceived through in vitro fertilization, artificial insemination, or through surrogacy. Only one of the partners might be biologically related to the child, and the child's biological parent will be presumed to have parental rights. However, the non-biological parent might not enjoy the presumption of parenthood.

2. Establish Parental Rights

To avoid potential problems, make sure to protect your future custody rights by considering a stepparent adoption. When you adopt your non-biological child, you'll have the same child custody rights as your spouse if your marriage ends, including the right to getting sole custody of child in same sex marriage and divorce if your spouse becomes unfit.

3. Know the Legal Options for Child Custody Under Same Sex Marriage

The legal options for custody in a same-sex divorce are the same as those available to divorcing heterosexual couples. Child custody refers to both legal custody and residential custody. Legal custody refers to the decision-making responsibility for the child's education, religion, and medical care. Residential custody refers to which parent the child will primarily live with.

Legal custody can be shared, split, or held solely by one parent. With shared decision-making, you and your former spouse will need to consult each other and arrive at joint decisions. Legal custody can also be split, meaning that one parent might have sole authority to make decisions about one of the major areas while sharing the other decisions. For example, if you and your spouse have different religious beliefs, one of you might be awarded sole decision-making authority about your child's religious upbringing while sharing decision-making about your child's education and medical care.

One parent might be deemed to be the residential custodian for school purposes while the other might be granted liberal visitation. For example, if you live in a good school district, you might be considered the residential custodian of your child following your divorce so that your child can continue attending school.

How custody is split can greatly vary. You should consult an experienced divorce lawyer in New Jersey for help with determining what will protect your child and your parental rights.

Legal Custody Variations

Custody TypeDescription
Shared Decision-makingBoth parents consult each other and make joint decisions on major areas concerning the child.
Split Decision-makingOne parent has sole authority in one major area, while sharing decision-making in other areas.
Sole Decision-makingOne parent holds all decision-making authority regarding the child's education, religion, and medical care.

4. Create a Parenting Plan

When you are going through a divorce, you and your spouse will each need to create a parenting plan that addresses how the time each of you will have with your child will be divided and details about how you and your spouse will co-parent. A well-thought-out plan can help to achieve a fair resolution for everyone involved while protecting your child's best interests. Include information about how you will handle holidays, extracurricular activities, medical appointments, and your child's education. Consider how much time your child will spend with each of you and how exchanges will work.

5. Keep Your Child's Best Interests at the Forefront

In New Jersey, judges make child custody decisions according to what is in the child's best interests instead of what either parent might want. Keep this in mind when you're trying to negotiate child custody. Your child's best interests should be your priority. Be prepared to compromise with your estranged spouse to ensure your child will enjoy continued stability and a good quality of life. When you show you care about your child's best interests, you are likelier to obtain a fair outcome to your case.

Child Custody in Divorce

ItemDescription
Residential CustodianThe parent with whom the child primarily lives, often determined by school district quality.
Liberal VisitationArrangements allowing the non-residential custodian ample visitation time with the child.
Parenting PlanA detailed plan outlining how parents will share time with the child and co-parent post-divorce.
Child's Best InterestsThe core principle guiding custody decisions in New Jersey, focusing on the child's stability and quality of life.

Consult a Same-Sex Custody and Divorce Lawyer in New Jersey

Child custody disputes can be especially difficult if you're going through a same-sex divorce. Because of the unique issues that can be involved, it's important to get help from an experienced New Jersey same-sex divorce lawyer. Contact Ziegler Law Group, LLC today to schedule a consultation by calling (973) 533-1100.

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