What are the visitation and custody rights of former same-sex couples?
Since New York recognized marriage equality in 2011, same-sex couples have had the legal right to marry. With this right, however, also came the ability to divorce, along with the same issues that must be resolved when a traditional couple ends a marriage, including child custody and visitation.
While children born into a marriage are deemed to be children of both parents under the law, the rights of same-sex couples who had a child before the law was passed, or those who have not married, were unclear. This left same-sex partners who ended their relationship facing insurmountable obstacles gaining visitation or custody of a non-biological child they had not adopted.
Now, the New York Court of Appeals has weighed in on the issue. In August, the Court ruled that former same-sex couples have visitation and custody rights even when they aren’t the biological or adoptive parent. In so doing, the Court expanded the definition of parenthood and tossed aside a 25-year old standard that it found unworkable for modern, varied familial relationships.
“Where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody...” Judge Sheila Abdus-Salaam wrote.
While the decision resolved two cases involving former, unmarried same-sex couples in which the biological mothers kept the children and the ex-partners sought visitation rights, this ruling will also apply to heterosexual, unmarried couples. This means that any ex-partner can seek custody or visitation of a child created through artificial insemination provided that they can demonstrate the former partners intended to raise the child together.
Ultimately, this case reflects society's greater acceptance of marriage equality and respect for non-traditional families. Nonetheless, any couple going through a divorce or ending a relationship still must navigate the complexities of New York's Domestic Relations Law. The experienced attorneys at Ianniello, Andersen, P.C. have extensive experience helping traditional and non-traditional families in the Capital Region on a wide range of Family Law matters.