Because of how recently same-sex marriage has been passed in states, child custody battles in these instances are often case-by-case, as the legal system and the rules that apply here are constantly changing. Not unlike heterosexual marriages, it is best that you and your ex-spouse really try to come to an agreement on all the child-related issues. Custody battles in court are never a good thing, as the psychological harm done to the child, as well as the overwhelming stress it puts on both parties can be seriously debilitating.
What is important in same-sex marriage custody battles are if both parties are “Legal Parents”. Both spouses are legal parents if the child was:
– Born into the marriage, civil union, etc, and so the non-biological parent gains parental rights.
– There was a joint adoption of the child.
If both parents are considered legal parents, all child-related problems will be handled in the same manner as a straight marriage. Here, a judge will take into account numerous factors in order to determine what is in the best interest of the child.
If only one of the parents is defined as a “legal parent”, it is a very different situation. Whether it is because the state doesn’t recognize that being in a relationship with the legal parent gives you parental rights, or simply because the original legal parent never agreed to making you a legal parent, it really doesn’t matter. Most states don’t give second parents any rights at all, negating any attempt to seek legal or actual physical custody. In addition, you may not even be able to seek visitation. On the flip side, this parent will almost always not be obligated to pay any type of financial support for the child. Some states will, however, recognize that the second parent does have parental rights if there is a clear intention to establish a legitimate relationship with the child, and to raise it.