Many people celebrated when the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage in the United States in 2015. But the legal recognition of the beginning of such relationships also means a legal recognition of their end. Marriage equality may be a beautiful thing, but equal treatment of same-sex couples in divorce has a long way to go, particularly when considering child custody. Let’s take a closer look at one of the major obstacles same-sex couples can endure when going through a divorce.
An Uphill Battle
Divorce is a painful process for all couples, no matter their sexual orientation, and difficult questions of custody and parenting time between parents can make the trauma of terminating a marriage even more painful. Although most states have long standing statutory presumptions about such issues in the case of a heterosexual couple going through a divorce, until recently, very few of those states had similar standards for the termination of same-sex relationships or marriages.
Before Obergefell, same sex-marriage was handled at the state level, so many couples had to venture outside their home states in order to wed. When children would later enter the picture — whether through adoption or live birth — there was likely only one parent listed on the child’s adoption papers or birth certificate, leaving open the question of the other parent’s recognized legal status as a parent.
Why does this matter? The answer lies in those same state-level presumptions. For many states, including Ohio, a child born during a marriage is presumed to be a child of that marriage, and both parties are considered legal parents until otherwise established. States are now wrestling with the question of whether the same presumptions should apply to children born during a same-sex couple’s marriage, particularly where only one parent may have a genetic link with the child through birth. And those questions are even more pronounced where a child has been adopted — if the marriage terminates and the adoption records reflect that only one of the parents is the legal parent, what rights does the non-adopting parent have to custody or parenting time arising from the divorce? If only one of the parties to such a divorce is “the parent”, is there an obligation by the other party to provide financial support for the child?
In such instances, the unlisted spouse could be left with little to no rights where the child was concerned following a termination of the marriage. Without clear state standards on these issues, it can potentially be an uphill battle to obtain joint custody, or even to be granted visitation, of the children they’ve been deeply involved in raising.
A Reason to Hope
Same sex couples that marry today may have a lot less to worry about, since their marriage will be recognized nationwide from the very beginning. Though not every state has settled on an answer, there is definitely movement toward recognizing both parents on birth certificates or adoption papers during their marriage. But couples that married before the Supreme Court’s Obergefell v. Hodges decision may be in a far more questionable position.
There is hope on the horizon for those struggling with these issues. The Supreme Court has already struck down one state law that treated same-sex couples differently than heterosexual couples regarding their children’s birth certificates. And a New York judge recently granted visitation to the secondary parent in a bitter divorce case and potentially set a precedent for future proceedings.
What You Can Do
Familiarize yourself with the laws in your state. Closely review any existing signed agreements between you and your spouse. Consult an experienced attorney to define and defend your rights. And continue your relationship and your routine with your children to the best of your ability during this process. The less they have to adjust, the better.