When Ohio couples with children file for same-sex divorce, they have to navigate custody laws written for heterosexual marriage. Therefore, there are several complexities that you need to deal with during the dissolution of the marriage.
Because same-sex marriage is a relatively recent addition to the law, many a same-sex divorce case deals with property issues. There is communal property from before the marriage, and then there is marital property. However, there are now also custody concerns.
Whose child is it?
Are both partners legal parents? This is typically the case when both parents adopted the child. You could also make the case that if one partner is the child’s biological parent, the other chose to go through with a stepparent adoption. When both partners are the legal parents of the child, they have the same rights under the law.
However, if only one partner is the legal parent, the court usually finds that this individual has presumptive custody rights. Even if the other partner acted as a stepparent for the duration of the marriage, the failure to make it legal on paper can hurt them now. The court will not award custody or even visitation rights to a party who is not a legal parent to a minor.
Handling custody issues in LGBTQ+ cases
If you can prove that your relationship was essential to the emotional and physical wellbeing of the child, a court may entertain your motion for visitation even without being a legal parent. For example, if you were the stay-at-home parent while the biological parent went to work, you could argue that you built a strong relationship with the child. However, it is in your best interest to see if you can work out these issues during mediation before heading to court. Working with an attorney could help you deal with the same-sex custody issue effectively.