Parenting Rights and Same-Sex Marriage

Protecting Your Rights as a Same-Sex Parent

Same-sex marriage has been recognized in New Jersey since 2013 and in the U.S. as a whole since 2015. Though same-sex spouses enjoy the same rights in the Garden State as other married partners, divorce may present some challenges, particularly when children are involved. If you are a non-biological parent, consulting with an experienced same-sex family lawyer may be able to help you protect your parental rights.

Same-Sex Divorce and Custody Issues

Divorcing couples with children can avoid court battles all together by resolving issues such as legal custody, physical custody, visitation and child support between themselves. This is true for same-sex couples as well as divorcing spouses of opposite sexes.

While parenting contracts don’t contain enforcement mechanisms as such, they do carry weight with New Jersey family courts and are likely to influence that court’s final determinations of custody, visitation, child support and related issues.

If parents can’t come to an agreement between themselves, then the family court will step in. When both spouses are legal parents, disputes regarding child custody in same-sex divorces will be handled just as they would be in any other divorce. The judge will use a standard based upon the best interests of the child, considering factors like each parent’s living situation, the age of the child and the individual relationship each parent had with the child before divorce.

However, if only one of the spouses is a legal parent, things have the potential to become much more complicated. New Jersey state courts have recognized that non-biological and non-adoptive parents may seek custody or visitation even in the absence of legal parent status. What happens, however, if the legal parent decides to move out of New Jersey at a subsequent date?

Marital Presumption in New Jersey

Ostensibly, both same-sex married partners have full parenting rights for any child who is born during that marriage. This assumption is known legally as marital presumption.

New Jersey state law itself, however, is somewhat unclear on that subject. According to N.J. Stat. 9:17-38 to 59, also known as the Parentage Act, a husband is considered to be the biological parent of any child conceived by his wife through artificial insemination. One might assume, therefore, that a same-sex spouse who was not carrying a child would be entitled to the same presumption. However, the New Jersey statute does not specifically state this, leaving a grey area in the law.

Second Adoption

The situation can grow more complicated still if one of the divorcing spouses has a biological relationship to the child that existed before the marriage. While New Jersey case law suggests that the non-biological parent retains parental rights, many states will grant the biological parent presumptive custody rights without question. Only when the second parent has adopted the child, can he or she be assured of obtaining a judgment that’s on an equal footing with that which would be made on behalf of the biological parent.

Second adoption is a legal remedy that can help protect the security of a family. In New Jersey, adoption can be a complex and expensive process that takes months to complete, includes fingerprinting and background checks, and involves a court hearing in front of a judge. However, once the process is complete, the court will issue a “Full Faith and Credit” order that acts as a guarantee that both spouses will be recognized as a child’s legal parents in New Jersey and every other state in the union.

Getting Help From a Family Law Attorney

Family law issues can often be complicated and involve many factors. When it comes to child custody, the emotions of the parties involved can run especially high. By consulting with a same-sex family lawyer in New Jersey, you could better understand the legal protections that are available to you as a parent. Contact the law offices of Kelly Berton Rocco in Hackensack at (201) 343-0078 for more information and to schedule a consultation.