Despite the nationwide legalization of same-sex marriage, the laws regarding child adoption by same-sex couples are still a patchwork across the U.S. Second parent adoptions aren't legal in all states.
That problem can -- and has -- left parents unable to share custody or even be allowed visitation of a child they've raised since birth if the couple splits up if they aren't considered the child's parents under the law. This can impact heterosexual couples as well, but it's been a too-common issue for same-sex couples whose marriages weren't recognized in the state where they were living until the Supreme Court decision that mandated all states to recognize them.
Co-Parenting and Custody Agreements
People who live in a state where second parent adoption isn't legal can take steps to help protect their parental rights in the event of a break-up: a custody agreement or a co-parenting agreement. A court doesn't have to recognize either of these. However, they can provide evidence of the non-legal parent's involvement in a child's life that can help protect that parent's rights in a custody battle where the best interests of the child are considered paramount.
These agreements generally stipulate that both people consider themselves to be equal co-parents even though only one is the legal parent. They can address how the couple will co-parent the child both during the marriage or relationship and if it ends. They can address things like where the child will live, who is responsible for decisions related to the childís upbringing and how financial responsibilities will be shared.
Other Evidence That Can Strengthen Your Case
In addition to these agreements, or if you don't have one, non-legal parents can bolster their case for continued shared parenting with documentation showing your involvement in the child's life.
Judges faced with a custody battle between a legal and non-legal parent will look at the length and closeness of the bond between the non-legal parent and the child and whether they lived together as a family. A recently-recognized legal concept called "psychological parenthood" is used in some states. Also known as "de facto parenthood," it recognizes that non-legal parents can have close relationships with their children that shouldn't be severed.
A family law attorney who is experienced in dealing with the legal issues faced by same-sex couples and knows the pertinent state laws can advise you, whether you are considering drawing up a custody or parenting agreement or you are fighting for a continued relationship with your child.
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