For same-sex couples in states where marriage or civil unions aren’t recognized, child-related divorce disputes are murky.
“It’s all very challenging for people,” Sakimura said. “If people have adopted, for instance, then they can just file a separate custody action in their state as an unmarried couple after they divorce, but for people who have not, they may find themselves in a situation where one parent is not going to be recognized. It can be a huge problem.”
By adoption, Sakimura means primarily so-called second-parent or co-parent adoptions. In some areas, that step is intended for unmarried couples — of the same or different sexes — when one partner has biological ties to children and the other doesn’t.
That, too, presents legal challenges: Appellate courts in seven states — Alabama, Kansas, Kentucky, North Carolina, Nebraska, Ohio and Wisconsin — have ruled that second-parent adoptions are not permissible for unmarried couples, Littrell noted.
In 19 other states, all of which have same-sex marriage bans in their state constitutions, laws are unclear whether both parents can create a legal relationship to children they are raising there.
In those states, Littrell said, if same-sex partners — married or otherwise — break up, courts likely treat them as legal strangers to each other in custody fights. Without a finalized adoption, judges may also treat the “non-legal” parent as a legal stranger, or third party, to a child.
“Without recognition as a parent, that spouse has little, if any, legal standing to ask for visitation or custody of the child they love and raised,” she said.
Not all same-sex couples with children have taken the adoption step when allowed, Sakimura said. Some may consider it unnecessary or too costly.
“Everybody who is not a biological parent, we definitely recommend they adopt if they can. That way even if they get stuck in a situation where they can’t get divorced or they can’t do a custody action as a part of their divorce, they can often be helped,” Sakimura said.
Article continues belowAttorney Elizabeth Schwartz in Miami, a family law specialist and lesbian, gay, bisexual and transgender advocate, said there can be “portability problems” in same-sex child custody battles from state to state, especially when moving from one state that recognizes same-sex marriage to one that doesn’t.
Florida does not recognize same-sex marriage and Schwartz finds herself educating others in the legal field about the importance of second-parent adoptions for such couples.
Regardless, Schwartz said, she and LGBT experts believe the legal emphasis is in the wrong place when it comes to settling child custody, visitation and support.
“We need to make the legal bond about the bond of parent to child,” she said, “not just parent to co-parent.”
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