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How Is Child Custody Addressed in a Same-Sex Divorce?

 Posted on September 14, 2021 in Family Law

milwaukee divorce lawyerBy: Attorney Max Stephenson

Since 2014, same-sex marriage has been legal in Wisconsin, and LGBTQ couples have the same rights as opposite-sex husbands and wives. These rights also extend to divorce, and if a same-sex couple chooses to end their marriage, each spouse’s rights will be protected when addressing issues such as property division and spousal support. Same-sex parents will also usually have the right to share child custody. However, there are some complications that may arise in these cases, and LGBTQ parents should be aware of how these matters may be handled when they get divorced or when partners break up.

Issues Related to Child Custody in an LGBTQ Divorce

Wolf v. Walker, the Wisconsin Supreme Court case that legalized same-sex marriage, made it clear that when the state’s laws refer to a “husband and wife,” this also includes same-sex couples. This means that same-sex parents will share the same rights toward children as opposite-sex parents. This may become an issue when determining paternity for a child. If a child is born to a mother who is legally married, her spouse will be recognized as the child’s parent, regardless of that spouse’s sex. This will ensure that a same-sex spouse will have parental rights if the parents get divorced, even if the spouse is not the child’s biological parent.

The same is true for same-sex parents who adopt a child together. In these cases, both members of a couple will be the child’s legal parents. If the couple gets divorced or splits up, they will address child custody in the same manner as opposite-sex parents. The decisions in these cases will be based on what is in the child’s best interests. Parents will typically share legal custody of their children, giving them both the right to participate in decisions about how the children will be raised. Physical placement will be divided between the parents, and children will usually spend time living with each parent regularly. Both parents will also be required to support their children financially, and child support will usually be paid by one parent to the other.

While most child custody cases will be straightforward, with each parent having equal parental rights, cases can sometimes become complicated if one spouse is not a child’s legal parent. This may occur if a parent had a child from a previous relationship when they got married to a same-sex spouse or if only one parent adopted a child. If the other parent had not adopted the child after getting married, they will not be recognized as the child’s legal parent, and they may have no right to share in child custody. While parents may still be able to work out a custody agreement in these cases, disagreements about these issues may be difficult to resolve, and a person who is not a child’s legal parent may struggle to maintain a relationship with the child.

Contact Our Milwaukee LGBTQ Child Custody Attorneys

If you have questions about how to address child custody during a same-sex divorce, or if you want to take steps to protect your parental rights before divorce becomes an issue, the attorneys of Gimbel, Reilly, Guerin & Brown, LLP can provide you with the legal help you need. To get representation in a divorce or child custody case, contact our Milwaukee, WI LGBTQ family law attorneys at 414-271-1440.




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