Child Custody in Same-Sex Divorces
When two people in a same-sex relationship get divorced, the process of child custody can be challenging to navigate. In California, there are a few key things to keep in mind if you find yourself in this situation.
This article will discuss the types of custody arrangements in same-sex divorces, and where you can go for help.
How Is Custody Determined In California?
California Family Code 3011 requires that child custody be decided based on the child’s best interests. This means that the court will consider several factors when determining which parent should have primary custody of the child. These factors include, but are not limited to:
- The child’s relationship with each parent
- Any history of domestic violence of either parent
- Illegal drug use by either parent
- The age of the child
- The child’s preferences
- The ability of each parent to provide for the child’s needs
- The child’s ties to the community
In 2005, the California Supreme Court effectively expanded child custody, visitation rights, and child custody rights for same-sex divorces by its rulings in two separate family law cases.
In other words, California law doesn’t treat same-sex relationships any differently than opposite-sex relationships. This law extends to child custody arrangements and means that if you are going through a same-sex divorce, you have the same rights as any other parent would when it comes to child custody.
Types of Custody
Judges typically require parents to agree on a parenting plan before going to court. If the parents agree, then the agreement becomes legally binding. In cases where the parents can’t agree, the judge will require them to meet with a child custody mediator. If they still can’t come to a parenting plan with the help of mediation, then the judge will make the final ruling after meeting with both parents separately.
In California, there are two types of custody:
- Legal custody refers to who will make important decisions for your child, including education, health care, religious instruction, extracurricular activities, and overall welfare.
- Physical custody is who the child will live with.
Legal custody can be either sole, where only one parent will make all the decisions regarding the child, and joint, where both parents share responsibility in the decision-making. Sometimes, both parents will share legal custody, but only one parent has physical custody.
Visitation refers to how the child will spend time with each parent.
Family Code 3011 states that “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”
Get Professional Assistance to Understand Your Rights
If you are going through a same-sex divorce in California, it is essential to understand your rights regarding child custody. If you live in San Jose or the greater Bay Area, contact Lonich Patton Ehrlich Policastri. Our experienced family law attorneys can help you navigate the legal process and ensure that your rights are protected. Call 408-553-0801 and schedule your free consultation.
Gretchen Boger
Gretchen Z. Boger began her law career as a Deputy District Attorney in San Joaquin County from 2007 – 2010. During her tenure with the D.A.’s office, she prosecuted 17 jury trials. Ms. Boger has been practicing family law exclusively since January 2010. Ms. Boger joined Lonich Patton Ehrlich Policastri in 2013. She received her Juris Doctorate from the University of the Pacific, McGeorge School of Law. During her time at McGeorge, she received a concentration in trial advocacy.
