Carolann M. Aschoff, P.C.

Issues concerning same-sex couples: child custody

Imagine for a moment that you are a same-sex partner currently married to your spouse. From a previous marriage, you have a young child for whom you are the custodial parent. You and your current partner share parenting time and you can tell that your child and your partner have grown close. Almost as close as your child is with you and your former spouse.

Now imagine this same situation, but you and your current partner are facing divorce. As with any divorce, you must handle a variety of challenging legal issues. But because of your partner's close relationship with your child, you now run into an even more challenging situation as well as a difficult question: Can my partner ask for visitation?

Even though we are presenting this question using the example of a same-sex couple, it's worth noting that this could be an issue a traditional couple could run into as well. But because there is little the law can do in a situation like this, it is up to parents and ex-spouses to look out for the child's best interests.

If former partners can make an amicable agreement outside of the courtroom, then visitation can be established. Just note, a second parent, meaning one who is not linked biologically or through adoption to the child, may have no legal grounds to assert visitation rights if the child's parents do not agree to a visitation agreement.

In situations such as this, seeking legal representation may be necessary though not completely necessary as a judge is unlikely to award visitation or custody to a second parent, unless that person was able to show that the child was in danger in their current living arrangement.

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