In the event of a divorce in a same-sex marriage, does the biological parent have more rights than the non-biological parent in a custody dispute?
Not necessarily. Sometimes there are cases where there is an emergency request during the domestic relations case, and the court grants the non-biological parent temporary custody. It is not always the advantage solely of the biological parent, but every case has to be determined on a case by case basis.
It’s going to depend on the circumstance of the parents and the circumstances of the kids. The law allowing same-sex marriage just came into effect in 2015, and we are now starting to see more litigation relating to these issues. Some of the marriages that had become legal in 2015 are now starting to break up, so we are at the beginning stages of seeing how the court is handling the breakup of these marriages and how they are going to deal with the children.
If I married someone who already has a child, would I have any custody rights?
Typically, you wouldn’t have any rights as the stepparent even in a heterosexual relationship unless you were given the opportunity to adopt the child. Then you are no longer a stepparent, you are considered a parent.
If the same-sex couple doesn’t want to get married, do you still draft cohabitation agreements for people if they feel that’s the way they want to do it?
Yes. But it’s especially important when it comes to issues of buying real estate. We handle a lot of partition actions as well, where people are not married. A division of property cannot be divided in domestic court, so we have to find some way to get this property divided and we end up doing a partition action.
Read more about our family law practice.