A court may issue an order for custody of your child only if that court has the power to do so in your particular case. Even a state that does not grant same-sex divorces may hear and decide child-custody cases for same-sex couples if the court has the jurisdiction to do so for the children in question.
A court’s power to decide issues of child custody is defined by the Uniform Child Custody Jurisdiction Act (UCCJA), which has been adopted by all 50 states and the District of Columbia.
The UCCJA gives a state court power to issue an initial child-custody order as follows:
1. The child’s “home state”* will generally be the state with jurisdiction to decide the child’s custody. (The state must be the child’s home state on the date the proceeding was commenced, or the state must have been the home state within six months before the proceeding was commenced and the child is absent from the state but a parent or person acting as parent continues to live in the state.)
This will vary only when a child has no home state (because, for instance, he has been continually moved from one state to another) or when the home state declines to exercise jurisdiction on the ground that another state is the more appropriate forum.
2. If jurisdiction is declined or does not exist as stated in paragraph (1), the next state on the list of those that might exercise jurisdiction is one to which the child and at least one parent (or person acting as parent) have a significant connection other than physical presence and in which substantial evidence concerning the child’s care, protection, training, and personal relationships is available.
3. If all courts that have jurisdiction under either paragraph (1) or (2) decline to exercise that jurisdiction on the ground that another state is the more appropriate forum in which to determine the child’s custody, that other state will have jurisdiction to decide the issue.
4. If, and only if, no court has jurisdiction under any of the first three scenarios described above, the court of any state in which a parent files a petition for custody may decide the issue.
A court’s power to issue an order for child support is defined by another law, known as the Uniform Interstate Family Support Act (UIFSA), which also has been adopted by all 50 states and the District of Columbia. The state in which a petition for child support is filed is most often the state in which the parent filing the petition resides.
If the child’s parents live in different states and both file petitions, the court of the child’s “home state” (defined in essentially the same way as it is defined for purposes of the UCCJA) will have jurisdiction. If no “home state” exists, the state in which the first petition was filed will have the power to decide the issue.
Parentage Requirements to Seek Child Custody or Support
Only a “parent” has the right (or standing) to seek child custody or support. Though the laws regarding the definition of parentage differ from state to state, each state requires a party to establish parentage before a request for child custody or support may be entered in that party’s favor. In other words, a party must establish that he or she is a “parent,” as that term is defined by the particular state for purposes of these particular issues.
Children Born Into a Marriage
Generally, in a heterosexual marriage, a child born into the marriage is presumed to be the child of both spouses. States will not necessarily make the same presumption with respect to children born into a same-sex relationship, though there are exceptions.
Massachusetts law, for example, presumes children born into any legal marriage (including same-sex marriage) to be the children of both spouses. Massachusetts also considers a child conceived through artificial insemination to be the child of both spouses, as long as the non-inseminated spouse consented to the procedure.
In a 2012 Massachusetts case, a domestic partner filed for dissolution of her domestic partnership as well as for custody of her partner’s biological child. (The partner who was the biological parent had been artificially inseminated with the consent of the partner now seeking custody.)
Because the domestic partnership had been formed in California, which grants rights to domestic partners equal to those of marriage, the Massachusetts court held that the domestic partnership was the equivalent of marriage for purposes of determining child custody and that any children born into the marriage were, therefore, presumed, under Massachusetts law, to be the children of both parents. The court granted the couple joint legal custody.
Generally, if a same-sex couple jointly adopts a child, or if the same-sex spouse of the biological parent adopts the child, both spouses will be considered parents for purposes of either child custody or support.
If the non-biological parent neglects to adopt the child, however, he may not be entitled to either child custody or support unless he can establish another form of parentage. Again, the manner in which this may be done varies among the states, but the most common methods are through the doctrines of in loco parentis and de facto parentage.
In Loco Parentis
In Pennsylvania, for example, if a same-sex spouse has not adopted his spouse’s child, he may still be able to petition for custody and visitation rights if he can establish in loco parentis status, or that the spouse is acting “in the position of a parent.”
In 2005, a Pennsylvania court determined that a non-biological, non-adoptive parent (and former lesbian partner to the other parent) had the right to seek custody of a child after the court determined the party to be in loco parentis with respect to the child.
The court stated that, under Pennsylvania law, a party stands in loco parentis to a child when the party, with the consent of the biological parent, assumes the responsibilities of a parental relationship without going through the formality of a legal adoption. Whether these requirements have been satisfied depends upon the particular facts of an individual case.
The party’s in loco parentis status only granted the right to seek custody, however. A court will grant custody to a parent only if it determines that such custody is in the best interests of the child.
De Facto Parent
Washington, for instance, will grant a non-biological or non-adoptive parent parental status if the party meets the requirements of a de facto parent. In a 2005 case, the Washington Supreme Court held that in order to establish de facto parentage a party must prove
Delaware amended its statutory definition of parent in 2009 to include de facto parents, employing a definition similar to, but less restrictive than, the one employed by Washington. In Delaware, to establish de facto parentage, a party must prove only that he or she had the support and consent of the legal parent, that the de facto parent exercised parental responsibility for the child, and that the de facto parent acted in a parental role for a length of time sufficient to establish a bonded and dependent relationship with the child that is parental in nature.
The definitions of de facto parentage and in loco parentis status are similar, in that both involve the assumption of parent-like responsibilities by someone who is not a parent. The definitions can also differ from state to state and are often contradictory. In the 2005 Washington Supreme Court case referenced above, the court noted that Washington cases as well as cases from other jurisdictions interchangeably and inconsistently apply these two terms.
For example, the doctrines have often been distinguished by asserting that in loco parentis parentage requires the consent of a legal parent while de facto parentage does not. But, as can be seen from the above description of both Washington’s and Delaware’s de facto parentage laws, Washington and Delaware do require the consent of the natural parent for de facto parentage.
Another oft-made distinction is that de facto parentage places the de facto parent on equal legal footing with a legal parent while in loco parentis status merely gives the “parent” the right to sue in the capacity of a parent for certain purposes, such as child custody or support.
After you have determined which state has the power to hear your petition for child custody or support (under the requirements stated in the sections on child custody and support jurisdiction, above), you will need to determine what type of parentage that particular state requires in order to give you the right as a “parent” to bring such an action.
Complex Issues Require Expert Assistance
Same-sex divorce is complicated even when children are not involved. If children were born or adopted into your same-sex marriage, your paramount concern should be the welfare of those children. As demonstrated by the preceding discussion, child custody and support issues in same-sex divorce are far too complex and important to be handled alone.
* “Home state” is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.