How Can I Protect My Parental Rights In A Same-Sex Divorce In Georgia?

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Answered by: Samuel (Sam) Siemon

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In any divorce where children are involved, the stakes are typically high for parents to protect their parent-child relationship. For same-sex couples getting divorced, both parents wish to protect their time with and access to their child in a child custody dispute. No parent wants to miss out on weekends, birthdays, holidays and other important events of their child’s upbringing.

However, while the similarities are vast, LGBTQ parents facing divorce can benefit from also understanding the differences they may face in seeking custody or even visitation rights. Such differences can occur due to whether the child was born before the marriage, whether one parent is a biological parent, whether both names are on the birth certificate or adoption papers and more. Child custody cases between divorcing same-sex partners can be complex. Working with an experienced family law attorney from the onset of the divorce process can help to ensure that your goals are diligently pursued.

The Presumption Of Parenthood

In Georgia, as well as in other states, the state presumes the identities of the legal parents of a child when the child is born during the marriage. With the still recent legalization of same-sex marriage across the country, many same-sex couples may have chosen to have a child, whether through surrogacy, in vitro fertilization, adoption or more, prior to legally getting married.

This can become especially complicated in a future divorce when one parent is the biological parent. In such situations, “presumed parenthood” of the child often does not apply to both parents. It can then be easier for the biological parent to take precedence and pursue custody over the other.

Another complication may be if the nonbiological parent of a child chose to adopt through a stepparent adoption. Such adoptions may be the right decision for a couple when the two are married and one spouse is the biological parent. However, when the adoption takes place out of wedlock, the legal process may not be recognized in a future child custody dispute. Stepparent adoptions in Georgia are only valid when the couple is married, both have resided in the state for six months and the parent wishing to adopt is married to the biological parent.

Custody And Visitation Options In Georgia

When the court recognizes both parties as legal parents, custody is broken down into two forms in Georgia: physical and legal. Physical custody refers to the whereabouts of the child, including where they will live and spend their time. Legal custody refers to the rights and abilities of parents or guardians to make key decisions on behalf of the child, such as on matters related to education, religion, health care and more.

Courts may grant sole or joint custody of children. When the court awards one parent sole custody, the other parent or noncustodial parent, may still seek visitation rights. However, child custody goes beyond determining which parents will receive custody and visitation. Divorcing parents may also draft a parenting plan to ease the transition and establish a sense of stability for the child. Parenting plans may consider:

  • How the child will spend birthdays, holidays and other special occasions
  • Transportation arrangements and details for transfers of the child between parents
  • Agreed-upon details for how one parent may contact the child while in the care of the other parent
  • A schedule for when the child will be in each parent’s care

Courts continually act on what they consider to be the best interests of the child. In many cases, the court recognizes the benefits of the child growing up with a relationship with both parents. Factors considered can include the child’s upbringing, health, safety and well-being. If the child is over the age of 14, the court may also consider their input and opinion.

Any sort of child custody and visitation dispute can be complex and frustrating for all parties involved, but especially for your child. Working with a lawyer from the start can help to ensure your wishes are heard, your goals are pursued, and your parent-child relationship is protected.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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