Are Custody Concerns Different for Divorcing Same-Sex Couples in Oakland County (Pt 2)

A young person's hands covered in rainbow colored paint, signifying gay pride.
Gay divorcing couples have unique challenges to overcome when it comes to figuring out child custody issues.

Welcome back and thanks for joining us for this discussion on the unique challenges faced by same-sex couples in Oakland County when getting divorced and handling custody disputes. As we mentioned in the previous article, same sex couples have additional complications when dealing with custody, due to the way the law views the rights of biological parents versus non-biological parents. And like it or not, gay and lesbian couples face the difficulty of usually only having one parent biologically attached to their children. Which can make proving paternity, or maternity, very difficult. (This whole picture changes if the non-biological parent formally adopts the child(ren) of the biological parent.)  

This battle has happened for same-sex couples before

In “The Other Mother: A Lesbian’s Fight for Her Daughter,” Nancy Abrams documents the painful struggle she endured for years, while she fought for the right to parent her daughter from a same-sex relationship. Abrams was not the biological parent to her child, so when she and her partner parted ways, her former partner refused to allow her any parenting rights, or even the opportunity to see her daughter. Abram’s situation, while tragic, is neither new, nor uncommon. 

The case of Berndt vs. Phillips is another classic example.

Amber Berndt and Joy Phillips were a same sex couple who stayed together for eight years and brought two children into the world together. However, after their relationship ended, Berndt took the couple’s two children (which she had given birth to) and left. Phillips fought her in court, demanding that she be granted joint custody of their two children. But Berndt refused, pointing out that she had birthed the children, and Phillips had no legal grounds for claiming any parenting rights at all.

Marriage will likley play a big role in future same-sex custody battles

They ended up fighting it out in court. Phillips’ divorce attorney argued that her client should be granted joint custody of her children because she’d helped to raise them for their entire lives. But Berndt’s divorce attorney claimed that because she gave birth to their children, she has custody rights as their biological mother. It was a very messy case that dragged on for years, but one factor that came to light, which affected the entire case, was the issue of marriage.

Unmarried LGBTQ couples are more likely to have custody problems

Berndt and Phillips never married, because at the time they got together same-sex marriage wasn’t available as an option. And that ended up being a factor in their case. Because they weren’t married, and hadn’t tried to get married in another state where it was legal, or even had a private, non-legalized marriage ceremony, Phillips had absolutely no legal claim to the children. Had she and Berndt been married when the children were born, and for years afterwards, she would have been able to prove the role she played in their children’s lives. Or if there had been a legal adoption, the story would have been different. 

Make sure you get the right help when dealing with custody issues!

As family law attorneys who’ve been practicing in Oakland County for many years now, we understand how complex the issue of custody can be. We would strongly encourage all same sex partners in Troy, Royal Oak, Rochester and Bloomfield Hills who are considering having children, to meet with an experienced family law attorney in order to discuss their options. Issues  like marriage, prenups, and custody of any potential children should be discussed with an expert beforehand. Having taken a little time to plan ahead now can save years of grief and frustration in the future. Our experienced family law attorneys can be reached 24/7 at 248 479-62005, including weekends and holidays.