Child Custody and Support Issues Challenging in Same-Sex Split

Last month, we wrote that same-sex relationships often encounter more snags than heterosexual ones when it comes to matters of family law. Same-sex marriage, divorce and child custody issues still present unique legal questions in states like California where gay marriage is now legal.

Child custody can be particularly tricky in cases where one parent is not biologically related to the child he or she has helped raise. While it didn’t occur here in California, a recent child custody dispute involving a former same-sex couple highlights how complicated these rulings can be.

A former lesbian couple from Wisconsin has been involved in a legal battle over child custody and visitation rights for quite some time. The two women had been in a long-term, committed relationship together, and one of the women gave birth to a daughter in 1998. The couple split in 2006.

At first, the women agreed to equal child custody and equal sharing of expenses. But two years later, the child’s biological mother sought to reduce her former partner’s custody. A judge reduced the non-biological parent’s custody and also ordered her to pay child support.

The case recently went before the state Court of Appeals, which upheld the non-biological partner’s visitation rights but struck down the child support order. There is not a provision under state law wherein a non-parent must pay child support to a parent.

And while there is no law providing placement with a non-parent, there is precedent. According to the ruling: “a court has equitable power to consider whether visitation is in the child’s best interests when the petitioner proves first that he or she ‘has a parent-like relationship with the child,’ and second that ‘a significant triggering event justifies state intervention in the child’s relationship with [the] biological … parent.'”

The non-biological parent spent years helping to raise the child, and therefore had a parent-like relationship, the court said.

There are measures, including adoption by the non-biological parent, that will help put same-sex couples on more equal footing in the event of a divorce or split. If you would like to learn more, please visit our domestic partnership dissolution page.

Source: Milwaukee Journal Sentinel, “Court says no child support due in split of same-sex couple,” Bruce Vielmetti, Sept. 6, 2013