While rights have come a long way for same-sex couples in the United States, the laws entrenched over the nearly two and a half centuries of American history often fail to account for the particulars of same-sex marriage. Until the laws are updated, there are some details in the law that may create issues for partners of a same-sex marriage. A very significant and often overlooked issue is that of parental rights, which too often leads to disastrous results after a messy divorce.
What Happens to time sharing and parental responsibility in a Same-Sex Divorce?
In opposite-sex marriages, parental rights are usually established at birth. If a couple is married, a child born during the marriage is presumed to be the child of the couple and parental rights are usually established automatically. This process can become significantly more complicated in same-sex marriages with only one biological parent, or for those who opt for surrogacy.
In same-sex marriages, it is recommended that the non-biological parent(s) establish legal parental rights over the child. This can be achieved either by both parents adopting the child or by including the non-biological parent’s name on the birth certificate and adoption. It is crucial that both parents have legal parental rights over the child(ren) to ensure a fair case in the event of divorce or separation. Once parental rights are established, same-sex marriages are entitled to the same time-sharing and parental responsibility rights as any other married couple.
Creating a plan for establishing parental rights of both parents is heavily recommended. Otherwise, a same-sex divorce may result in the non-biological or non-adoptive parent being completely restricted from visitation or access to the child. Florida previously ruled that in same-sex marriages where one parent is non-biological and non-adoptive, that parent is not automatically granted parental rights. The ruling stated that because custody laws only apply to legal parents, and Florida courts have no duty to enforce visitation to anyone who doesn’t have parental rights, the non-adoptive or non-biological parent lacks the legal right to custody and time sharing. As such, it may be too late to argue for shared parental responsibility and time sharing after the fact.
If you’re part of a same-sex marriage and want to ensure that your parental rights are secure, contact Rotella & Hernandez today at (305) 596-3618. We’re available to help establish your parental rights or assist in navigating divorce for LGBT marriages.
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