In 2015, the U.S. Supreme Court ruled that all Americans, regardless of gender or sexual orientation, have the constitutional right to marry the person they love. If things don’t work out, they also have the right to pursue a divorce.
All couples face the same issues during a divorce, including: division of assets and debts, alimony, child custody, child support, and visitation.
However, custody gets complicated when it involves adoption and/or assisted reproduction. If you are pursuing an LGBTQ divorce and have concerns about your parental rights, we can help.
If One Party Entered the Marriage with a Child
In the State of New Jersey, a child can only have two legal parents. If your partner has a child from a previous relationship or marriage, you may find yourself taking on the roles and responsibilities of a parental figure.
However, you are not a legal parent without the paperwork to prove it.
In extreme cases, the other legal parent might be deemed “unfit” due to child abuse or neglect. They might be deceased, or consent to surrendering parental rights due to some other reason. In all these instances, a step-parent may pursue adoption.
If your partner files for divorce before you complete a step-parent adoption: you still have a fighting chance for custody and visitation if the court believes it would serve the “best interest of the child.”
In 2014, the appellate division of the Superior Court of New Jersey heard K.A.F. v. D.L.M., a case involving a female same-sex couple with a domestic partnership. One partner (K.A.F.) was the biological mother and carrier of the child, though both K.A.F. and D.L.M. had cohabitated and shared parental responsibilities since the child was under 2 years of age. (The child was 12 years of age at the time of the court argument.)
The child’s other legal parent was still in the picture, was fit to parent, had formally adopted the child, and was listed on the child’s birth certificate. Even so, the court determined that D.L.M. (a third party) had a legal right to pursue custody and visitation on the grounds that she had developed a “psychological parenting” bond with the child. To sever that relationship might cause emotional harm to the child.
If this scenario feels familiar, you’ll want to obtain skilled and experienced legal counsel as soon as possible.
If Both Parties Adopted the Child Together
If both partners legally adopted the child together, and are both deemed “fit” to parent, they are entitled to the same custody and visitation rights as any other parents.
In order to finalize a divorce in New Jersey, a couple must agree upon and sign a Parenting Plan that establishes the schedule, living arrangements and major decision-making processes surrounding the co-parenting of the child.
If they cannot reach an agreement independently, the court will have to establish one for them.
If Both Parties Had a Child Using Assisted Reproduction
If both parties agree to have a child using assisted reproduction (sperm donation, egg donation, embryo donation, etc.), the nonbiological parent must take extra legal precautions to establish the same parental rights automatically awarded to the biological parent.
Though married spouses are generally presumed to be the legal parents of a child, New Jersey allows for “second parent adoption” to establish joint parental rights. A family lawyer can help you determine if second parent adoption is necessary to protect your relationship with your child.
Fertility law is an incredibly complicated area within family law. Parental rights can vary greatly depending on the specific details of the case. If you are concerned about your parental rights, seek legal counsel right away.
Hire an LGBTQ Divorce and Custody Lawyer in New Jersey
Each lawyer at Arons & Solomon holds more than 20 years of experience in family law. We are on the cutting edge of developing LGBTQ case law and maintain a professional atmosphere that welcomes people from all walks of life.
We do not discriminate based on race, color, national or ethnic origin, age, religion, disability, sex, sexual orientation, gender identity and expression, or any other characteristic or lifestyle.
If you are pursuing custody in an LGBTQ divorce, we can help.