LGBT Child Custody: Who Gets the Kids?

lgbt child custody issuesWhile tremendous strides have been made in the law, LGBT couples who have children can still face challenges when they separate and a child custody arrangement needs to be put in place. The laws in the country and, specifically, in New Jersey, have changed quickly when it comes to LGBT couples with children. There are always new cases coming up through the courts that involve LGBT couples because this is a fairly burgeoning area for the family courts. What might you encounter?

States in the US vary with regard to parentage and LGBT couples. For example, in Arkansas, second-parent adoptions are not permitted. And, in Mississippi, same-sex couples are expressly prohibited from adoption. In New Mexico, case law allows enforcement of only some agreements between biological parents and their partners concerning child custody or visitation.

New Jersey, however, has recognized both biological and non-biological parents as legal parents. A child is legally both parents’ if that child was born into the marriage, civil union or registered domestic partnership, if the child was adopted by both parents, or, if the non-biological parent proves to the court that they have established a parent-child type relationship with the child. You do this by proving you accepted your parental responsibilities, held yourself out as the child’s parent with the other parent’s permission and lived with the child after birth or adoption and developed a strong emotional bond with the child.

Where both parents have equal legal rights, child-related disputes should be handled just as they are for a straight divorce, where a judge will consider a variety of factors to determine the outcome that is in the best interests of the child. But, as with any custody battle, it is always recommended that you and your child’s other parent attempt to sit down and negotiate an agreement that governs custody, child support and parenting time. Any issues that the two of you can work out together gives you much more freedom in planning your own lives and the lives of your child.

Refusing to work with your ex will lead to drawn out courtroom battles, expensive legal fees and will end with a stranger (the family court judge) making decision regarding your lives now and into the future.

Remember, if you are the sole legal parent, and you truly believe that visitation with your ex-partner would be harmful to your child, then you have the right to try to prevent it. But, attempting to withhold your child from your ex simply because you are hurt or angry with that person is not best serving your child, who will benefit from close and lasting relationships with both parents. If you are unsure about what your legal rights are with regard to your child, seek out the advice and services of a qualified New Jersey family law attorney who has experience with LGBT couples and custody law in your particular county.

You and you ex should also consider mediation with a certified mediator here in New Jersey before filing court papers. If you two cannot work out your differences together, perhaps enlisting the services of an experienced mediator to facilitate a workable agreement would help your situation. If you do hire a mediator, be sure to remain open minded and honest throughout the process.

For more information regarding LGBT laws throughout the country, visit and, as always, be sure to contact us to schedule your initial consultation with one of our seasoned New Jersey family law attorneys.

LGBT parents rights