Same-sex marriage is still relatively new, which means that same-sex divorce is also a relatively recent legal process. As such, people often don’t know what to expect in a same-sex divorce scenario. Especially when there are children involved, there may be concerns about the parental rights of the spouses during the divorce process.
What do those contemplating a same-sex divorce in Washington state need to know about their rights?
Custody can be different in same-sex marriages
Most heterosexual couples benefit from automatic shared parental rights. A married man who has a child with his wife benefits from a presumption of paternity.
The state automatically includes him on the birth certificate of any child born during the marriage. If a married heterosexual couple adopts, they typically adopt as a couple, ensuring that both parents have the same legal relationship to the child.
Same-sex couples face a different dynamic. In many cases, only one spouse has a direct genetic tie to the child. One spouse may have gestated the child or provided gametes for fertilization purposes.
Other times, same-sex couples may share children that one of the spouses had any previous relationship. There are also many cases in which one spouse may have adopted either during or before the marriage.
Thankfully, spouses in same-sex marriages have protection under the Washington State Parentage Act. It extends a presumption of parentage to both spouses when a child is born during the marriage. In scenarios involving children from prior relationships or adopted by one spouse, the other spouse may have the option of initiating a stepparent adoption, a parentage proceeding, or other means of establishing legal rights relative to the child.
Even in scenarios involving donors for biological materials and surrogacy, same-sex parents can potentially both establish parentage. The level of conflict in the divorce and the timing of when the children joined the family can both affect the rights of the spouses.
Preparing for the possible complications that can arise in same-sex divorce cases can help people manage the process more gracefully. The court typically focuses on what would be best for the children when making decisions regarding the allocation of parental rights and responsibilities, regardless of the sex or sexual orientation of the parents.