Custody Issues for Divorcing Same-Sex Couples

LGBTQ parents face unique challenges when dealing with custody issues in Oakland County.

When the Supreme Court ruled that same sex marriage was legal in 2015, it was a groundbreaking moment for LGBT couples all over the nation. People lined up outside churches and courthouses all over in Royal Oak, Troy, Southfield and Rochester to tie the knot with the partners they loved. But with marriage comes all of those other, less-than-lovely issues, like divorce and custody concerns. However, for same sex couples, these situations can present a whole new set of dilemmas that heterosexual couples never have to face.

Same-sex parents face unique challenges when choosing to have kids

When same sex couples have children, whether by adoption, surrogate birth, or sperm donor, they encounter specific challenges. For example, when having a child via surrogate or sperm donor, they must decide which of the pair will be the biological parent, and which of them will be the parent in name only. While that may sound harsh, it’s in no way meant to demean the valuable parenting efforts that non-biological parents in same-sex marriages contribute to the raising of their children. But from a legal standpoint in Michigan, it matters.

Same-sex couples rely on outside help, which can complicate custody

The creation of a child requires both male and female genetic contributions, therefore same sex couples are forced to rely on outside assistance to have children. Unfortunately, this means that in the event that the relationship doesn’t survive the passage of time, they are in a unique situation that can make custody proceedings very complex. In Michigan, becuase only one of them is legally considered to be a parent to the child or children, figuring out who has custody rights might not be as streamlines as hetero coupes whose children share their genetics equally.

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. 

Michigan law is not as progressive when it comes to same-sex parenting

Michigan law, while it upholds the Supreme Court decision to legalize gay marriage, has not progressed much when it comes to other areas of same sex equality. In particular, the one area we are discussing that still needs significant improvement, is the issue of custody. Here in Michigan, and specifically here in Oakland County, divorcing same-sex parents can still face opposition from the court with regard to their right to parent their children, if they’re not biologically connected to the child.

There are ways to avoid this problem, in case your marriage doesn’t survive

Join us next time, when we’ll be looking at some cases that deals with this particular issue, and highlight the legal implications for the future of same-sex couples in Oakland County. Until then, if you need any help with your divorce, whether it’s separation of property, child custody or alimony, we can help. Our experienced family law attorneys have been helping people from all over Bloomfield Hills, Call us at (248) 479-6200 today, and make sure your s and your children’s best interests are protected.


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