Custody in Same Sex Marriages


A few years ago, I heard the heart-wrenching story of a woman–I’ll call her “Julie”–whose same sex partner adopted a little girl from China.  Both women actively participated in the life of this child; both of them considered her their daughter.  But Julie didn’t think to seek formal adoption.

When the two women separated, Julie’s partner refused to allow her to see their daughter, and the court had no jurisdiction to compel visitation.  In fact, the custody issues in the case were heard in Juvenile Court rather than Family Court.  Because of the animosity between the couple, this little girl lost contact with a loving parent.

The acknowledgment of same sex marriage may avoid the sad situation that happened to “Julie.”  In general, a child born or adopted during a marriage is considered to be a child of both parents.  Thus, Julie and her partner’s little girl would be entitled to have contact with both of them, and to be supported by both of them, if their marriage failed.

It appears that change is coming.  But while the law is in flux, it is a good idea for same sex couples to be vigilant and to consider the consequences of a decision to marry . . . to relocate . . . and to have children.  While many issues can be resolved by agreement (before and after the marriage), some issues remain within the province of the law.  Obtaining a legal resolution can be financially challenging and personally disheartening.  Nobody wants to anticipate divorce; people tend to learn about it on as “as needed” basis.  But, especially in an area of the law that is uncertain, it is wise to plan for any eventuality.