Child Custody & Same-Sex Marriages

15Oct, 23

Over the years, societal norms have continued to evolve and pave the way for a broader acceptance of same-sex marriages across many countries. In California, these unions have become extremely prevalent as more LGBTQ+ couples move to the state and start their own families. However, the more marriages there are, the more divorces there are as well. With them come serious issues regarding child custody & same-sex marriages.

When same-sex couples part, difficult decisions must be made to prevent as much disruption as possible for the children involved.

Challenges Faced by Same-Sex Couples

While there has been a ton of progress in this space, unique challenges still remain for divorcing same-sex couples who need to come to an agreement on child custody. Some of these include:

Biological Ties

In a heterosexual custody battle, biology is a significant factor. Historically, this has made it difficult for same-sex couples. In a lot of cases, only one parent has an actual biological connection, creating potential complications for the non-biological parent. Fortunately, California now operates under the Uniform Parentage Act. This ensures that any non-biological parents share in the parental rights.

Adoption Complications

Many same-sex couples turn to adoption to start their own families. This has made child custody difficult in the past, as certain jurisdictions would not recognize scenarios where one partner adopts the biological child of another. California has progressed on this issue by recognizing second-parent adoptions and ensuring that both individuals are able to move on post-marriage and still maintain some form of custody.

Societal Bias

While California is considered a progressive state, it is large and diverse. It is still possible to encounter bias against same-sex couples. While there is a legal framework designed to protect these families, legal professionals must keep an eye out to ensure that discrimination does not seep into any child custody decisions.

Mobility Issues

While California recognizes the union of same-sex marriage and grants full parental rights to these couples, not everywhere in the world does. This can create challenges when a same-sex couple splits, and the case then becomes a cross-jurisdictional custody dispute.

How Are Custody Decisions Made?

The court will consider several factors when determining child custody. Some of these include:

The Interests of the Child

Whether a child’s parents are heterosexual or same-sex, the interest of their welfare will always be the top priority of any court making custody decisions. This is determined in a number of ways, such as looking into the child’s relationship with each parent and their ability to provide a stable home environment.

The Child’s Preference

When a child is older and mature enough to express a preference, the court will take that into consideration. Typically, a child’s stated opinion on their own ideal custody arrangement gives insight into the quality of their relationship with each parent. If a child is claiming that they only want to stay with one parent, it raises concern as to why that might be.

Parental Behavior

If there is any evidence of abuse, neglect, or domestic violence, it will directly impact a parent’s ability to keep custody. Depending on how severe the allegations are, it could take away an individual’s parental rights altogether. In other cases, it may require a child to live with one parent full-time but set up a visitation schedule for the other.


Q: Can Same-Sex Couples Divorce?

A: Yes, same-sex couples are able to divorce just like their heterosexual counterparts. The process of divorcing in California is almost identical, as the couple will advance through the traditional legal proceedings where assets are divided, alimony is determined, and child custody arrangements are enforced.

Some same-sex couples in California may still only be in a domestic partnership from the time before same-sex marriage was legal. Terminating these is not more complicated than an official divorce. Connecting with a family law attorney can help you and your ex-partner navigate local regulations and advance through the process of divorce efficiently.

Q: Can Two Mothers Be on a Birth Certificate?

A: Yes, two mothers are both able to be listed on a child’s birth certificate in California. This is most often done in scenarios when a child is conceived through alternative reproductive methods, with the intention for two women to be recognized as their legal parents.

This is another example of how California law supports the rights of same-sex couples in parenting to ensure that both parents have equal legal standing. To ensure all that documentation is handled appropriately, and no one tries to take advantage of your rights, it’s advised to complete these types of legal activities with an attorney.

Q: How Do Same-Sex Couples Navigate International Adoption?

A: International adoptions can present challenges for same-sex couples looking to start their own families, as the rules change within each country. Some are open to same-sex adoptions, and the process would be very similar to adopting a child within the United States. However, other countries still have restrictions and would not allow these types of adoptions to happen.

To understand what adoption options are out in the world for same-sex couples, hire a family law attorney to better understand the legal details of same-sex adoption across the globe. They can help devise a plan on how to start or extend your family.

Q: Do Prenuptial Agreements Differ for Same-Sex Couples?

A: A “prenup” is a piece of legal documentation that details how specific assets and liabilities will be divided if a couple were to end up divorcing. Generally, the rules for same-sex couples are not any different from their heterosexual peers.

There are, however, some unique circumstances that could apply to same-sex couples with a prenup. For example, a same-sex couple may have been together for years before being able to legally get married in the United States. This could introduce some difficulties when determining what the official “start date” is to consider, for example, joint assets.

This and other potential complications require an attorney to assess the situation and devise a strategy for moving forward amicably.

Contact the Law Offices of Michelanne Hrubic Today for Same-Sex Couple Support

If you are a same-sex couple looking for legal assistance in determining a child custody arrangement post-marriage, contact the Law Offices of Michelanne Hrubic today. We are proud of our work to help support LGBTQ+ families throughout California, and our firm would be honored to help support you and your family during these difficult times.

Recent Posts



Contact Law Offices Of Michelanne Hrubic

How Can We Help You?

Fields Marked With An ” *” Are Required

"*" indicates required fields

This field is for validation purposes and should be left unchanged.