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In 2013, New Jersey legalized same-sex marriages in the New Jersey Superior Court case – Garden State Equality v. Dow. In 2015, the US Supreme Court legalized same-sex marriages in all 50 states in the case of Obergefell v. Hodges. These state and federal marriage decisions also opened the door to same-sex divorces.
In most divorce-related issues, same-sex spouses are treated like heterosexual spouses. This means the rules for dividing the marital property and alimony should be identical no matter the sexual identity of the spouses.
LGBT PARENTAL RIGHTS
The same-sex custody and visitation laws are somewhat different than they are for heterosexual spouses and parents. The different same-sex parenting laws are based on the fact that only one parent qualifies as a biological parent. Many children of same-sex marriages or relationships are conceived through artificial insemination or in vitro fertilization. For the spouse who is not the biological parent, his/her parenting rights may be affected.
In New Jersey, there are two types of custody – physical custody and legal custody. Physical custody refers to where the child lives and with which parent. Legal custody refers to who makes major decisions about the health, safety, and well-being of the child. Each type of custody can be shared/joint or placed in the sole custody of one parent. A parenting plan sets forth which parents have physical and legal custody. Parenting plans also detail the visitation rights of a non-custodial parent.
As with all custody disputes, the best interests of the child are the priority. The New Jersey family court will consider many factors including the child’s need for stability, the health and well-being of the parents, the relationship of the child with each parent before the divorce, parental employment, the proximity of the residences, and many other factors.
LGBT PARENTAL RIGHTS: custody of adopted children
If the non-biological parent adopts the child, then that parent should have the same rights to physical and legal custody as the biological parent. Adoptions of children by same-sex couples can be problematic. New Jersey does permit same-sex adoptions – especially when the person seeking to adopt is married to the biological parent. Still, some judges and adoption agencies may be more cautious before granting or favoring an LGBTQ adoption than a heterosexual adoption.
When adoptions are approved, the adopting parent “should” have the same rights to custody and visitation as the biological parent. This can even mean the right to obtain sole custody if the biological parent is an unfit parent.
LGBT PARENTAL RIGHTS: Children born after the spouses marry
In New Jersey, a non-biological parent may acquire legal custody rights – if the child is born after the spouses are married. This means that lesbian couple baby rights or bisexual/transgender baby rights include the requirement that both spouses are considered parents of a child born after the spouses marry.
LGBT PARENTAL RIGHTS: the concept of – in loco parentis
A lesbian, bisexual, gay, or transgender parent may be able to claim LGBT parental rights if they can show a strong psychological bond with the child such that the child sees that person as their parent. In this respect, the nonbiological parent may be able to argue they’ve assumed the obligations of being a parent and stand – “in place of the parent.” To qualify for loco parentis status, the family judge will review the following gay marriage children’s rights concerns (or other LBGT children’s rights concerns):
- The relationship between the spouses
- How long the spouses lived together and where the child lived during the marriage
- The parenting expectations and intentions of each parent
- Whether there are any written co-parenting agreements or other documents were both spouses are identified as parents
LGBT Parental Rights: Same sex custody rights when one parent lacks legal custody
The parenting rights of a non-biological spouse or partner are different in two core ways when that spouse/partner doesn’t have legal custody rights.
The first difference is that in non-adoption cases, the rights of all biological parents must be considered. For example, if two lesbians are married but the child was conceived due to a relationship between one of the lesbians and a male, then the male parent’s rights to custody and visitation must be considered. If the paternity of the child is not known, then the father generally will not have custody rights unless and until paternity is established.
The second difference is that the non-biological spouse or partner is not considered the legal guardian of the child and will normally not be able to claim any custody or visitation rights – even though any LBTG parents love and care for the children born to their spouse just as much as the biological parent
At DeTorres & DeGeorge Family Law, our family lawyers understand how devoted parents and spouses are to the children they raise. We help same-sex spouses understand their LGBT parental rights. Our lawyers help draft parenting agreements during the marriage and when LBGT spouses divorce. We advocate for custody and visitation rights when divorces and separations occur. To talk with an experienced New Jersey same-sex custody lawyer about LGTB parental rights, call us at 908-691-2104 or fill out our contact form to schedule an appointment. We have offices in Clinton and Morristown.
