On May 27, 2013, in Middletown, Pennsylvania, Dr. Lauren Daly was arrested for shooting her former partner in the heat of a custody dispute over one of their children.  Dr. Daly and her partner have shared custody of their 11-year-old son (the biological child of the victim) and their nine-year-old daughter (the biological child of Dr. Daly) since their 2011 split.  They are both the adoptive parent of their ex-partner’s child.  According to news reports, the victim was dropping the daughter off for a visit when Dr. Daly asked to speak with the son, who was sitting in the car.

Under the terms of their custody agreement Dr. Daly was to call the victim to arrange to speak with him, as he gets to decide whether he wants to see her or not.  Apparently this was what Dr. Daly was told she had to do on Memorial Day, with her son sitting in a car in her driveway.  She is alleged to have shot her ex-partner several times, and is now facing two counts of attempted homicide, four counts of aggravated assault, two counts of simple assault, two counts of reckless endangerment, and one count of endangering the welfare of a child.  The question is what can be done to protect children from ugly same-sex custody disputes when their same sex parents are divorcing?

This very complicated question has its roots in the fact that while same sex couples find themselves able to marry in certain states, they don’t always have the right to divorce.  Because gay marriage only started being legally recognized in the United States within the past decade, the laws for divorce of same sex couples are just catching up.  As couples move from the state in which they were married to states that do not recognize their marriage, and thus will not grant them a divorce, things can get even more complicated.  If they aren’t able to get a divorce but then marry someone else, they are bigamists.  If they move back to the state in which they got married in order to establish residency to qualify for a divorce (often a period of six months to one year), there are the added financial and emotional stressors on the family, especially on the children who are uprooted in the midst of family turbulence.

Custody Complications for Same-sex Couples

Like heterosexual divorces, divorces among single sex couples include the need to determine what happens with the children and what is in the children’s best interest.  Unlike a heterosexual divorce, however, child custody issues in a single-sex divorce can be complicated by determining who is actually a parent to the child.  In a heterosexual marriage, both members of the couple are presumed to be the parents of any child born during the marriage; that is not so in the case of the children born into a homosexual marriage.  A child with gay parents can have three or more parents: (1) the biological parent; (2) the egg or sperm donor, a surrogate if applicable; and (3) the partner-parent.  As an added twist, if a biological parent has not been able to get a divorce from a previous marriage, some courts may consider her first spouse to be the presumptive parent of the child.

How to Protect Children in Pennsylvania

In Pennsylvania, there are three ways to protect your children from an ugly same-sex custody dispute in the event of a divorce.  First, before your marriage, you and your partner need to have a Cohabitation Agreement.  Second, during the marriage, and immediately following the birth of each child, the non-biological partner needs to move forward with a second parent adoption.  Third, when the divorce is imminent, if you have not legally declared parentage of the children, you can file a Complaint for Custody.

Cohabitation Agreement

A Cohabitation Agreement is similar to a pre-nuptial agreement.  It sets out in clear terms what the legal rights and responsibilities of each party are as they enter their union.  This can also identify what you and your partner plan for any child-related and parenting issues.  It can address issues such as who is responsible for the child’s medical care, financial support and/or inheritance.  A Cohabitation Agreement cannot eliminate or reduce a parent’s obligation to financially support a child.  Nor can it significantly alter any custodial rights the non-biological parent would otherwise have.  While this is a completely legally binding document , which goes into effect as soon as it is signed (unlike a pre-nuptial, whose effectiveness is triggered by the wedding), the parts of the Agreement dealing with the custody and well-being of the children will always be subject to review by the courts, since the courts are interested in making sure that the best interests of the children are being met.

By having a Cohabitation Agreement in place with provisions for your children, it will ensure that you have given some thought as to how you would handle the needs of the children in the event of a split between you and your partner.  It will also give the courts guidance as to your intentions and how the children were cared for during the union.  By doing this, you have protected your children during what could become an ugly custody battle.

Second Parent Adoption

Once a child is born to you or your partner or one of you adopts a child, the non-biological or non-adoptive parent should apply for second parent adoption.  This will give the non-biological or non-adoptive parent all the rights of a birth or adoptive parent.  It would make the “second parent” a legal parent and thereby establish for both them and the child all the same legally protected rights as a biological or adoptive parent.  This means that the child can get health insurance through you, as well as have inheritance rights even if you don’t leave a valid will.  It also entitles the child to social security benefits in the event of your death.  Keep in mind that these rights also include the possibility of child support if that is how a court decides.  By adopting the child, it negates any doubts or questions the courts or anyone may have regarding your legal relationship to the child.  This means that the rights you have in a custody dispute are the same as your partner.

Complaint for Custody

In Pennsylvania, if you separate from your partner but have not yet establishing your legal rights with regard to the children, you can file a Complaint for Custody.  This document seeks legal recognition from the courts of your relationship with the child.  If a court grants your Complaint for Custody,  it means that they have given you in loco parentis status, which gives you rights to request visitation, as well as partial, shared or primary custody.  As with second parent adoption, this status can also create an obligation to pay child support and/or otherwise be financially responsible for the child.

Although Dr. Daly and her ex-partner appear to have had a custody agreement in place, that did not stop tragedy from happening.  However, there are certain steps you can take to ensure that your legal rights with regard to the children are established before the family unit, as you and the children know it, is pulled apart.  In addition to determining parental and custodial issues at the beginning of the parenthood journey, using a mediator to establish the post-split custody, visitation, and financial support obligations, would get matters settled sooner than waiting for a court decision. Because of the uncertainty of the courts when it comes to same sex divorces, and the added time and costs this adds to an already painful process, it would be in everybody’s best interest to have all custody issues settled more expeditiously.

Aside from the legal rights, the best way to protect your children from a custody dispute is to remember that they are not the ones getting divorced.  They should not be used as pawns.  If you are angry at your ex-partner, find a way to release that anger before it becomes destructive and harms the children you love.