Donna Dougherty Law P.C.

Child custody in a same-sex divorce

Virginia spouses who are in same-sex marriages likely celebrated with others around the country last year when these marriages were declared legal in all 50 states by the U.S. Supreme Court. However, that ruling, while important and a big step forward in its own right did not solve every problem that a gay or lesbian couple may eventually face. When such a couple ends up getting a divorce, what happens to any children?

As explained by the Examiner, traditional family law has presumed that any child born into a marriage is parented by the two spouses. This presumption is of course based upon heterosexual marriages and basic biology that required genetic contributions by both spouses to create a child. Even if a wife had become pregnant by another man, her husband would still have been considered the legal father if the child was born during the marriage.

Today, however, children can be conceived in a variety of ways. There is also the option for same-sex couples to adopt children. Does the fact that two women or two men are married at the time result in the same presumption as traditional law? That may not always be the case. If a child was born outside of a marriage, things can get even trickier. Just last year, a woman in Maryland was denied recognition as the parent of her former wife’s biological son. This decision was due in part because the child was born a few months before the women got married according to Newser.

The emotional fallout from the gaps in the law is real and so too are the practical ones. Issues can involve everything from parenting time to child support and more.

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