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Child custody issues are different in same-sex divorces

Getting divorced is difficult in the most simple of legal situations. For a same-sex couple with children, however, legal complications alone can make divorcing more complex and frustrating. Although Colorado has allowed for same-sex marriages since October of 2014, there remain many legal gray areas pertaining to same-sex divorces in the state.

In Colorado, when a married couple has a child, the assumption is that the child is a product of the marriage. Unless genetic tests or other evidence prove outside paternity, both spouses share custody and rights to the children. In same-sex marriages, no such presumption currently exists. For same-sex families facing divorce, the process of ensuring custody and co-parenting time may differ substantially.

Courts may consider social, legal and biological ties

Some custody situations are simpler than others. In cases where divorcing parents agree to terms on their own, the courts may simply review the parenting plan before approving it and granting a divorce. Situations that involve a disagreement about custody of the children can end up becoming quite complicated.

In cases where a child is legally adopted by both parents, the courts can refer to legal precedent involving cases with adopted children. Shared custody is likely, unless there are mitigating factors like domestic abuse or chemical dependence issues.

When only one of the parents has a biological relationship to the child, custody issues can become more complex. If the non-biological parent adopted the child, parental rights will likely get upheld. In cases where one spouse shares neither genes nor legal ties with the child, obtaining visitation and custody could prove more difficult. Establishing a strong familial bond and parental relationship to the courts will likely be a key aspect of your custody case.

Custody should be in the best interest of the children

The whole purpose of custody proceedings is to help ensure that minor children receive adequate social and financial support from both parents. Typically, custody decisions are decided based on the best interest of the children. Most courts recognize that, barring serious substance abuse or domestic abuse issues, kids benefit from positive, ongoing relationships with both parents. That same assumption should apply to same-sex divorces.

Regardless of legal adoption or biological relation, you love the children you and your spouse have been raising. You want to continue to be a part of their lives and help support them as they grow. Lawmakers may soon create better laws regarding custody in same-sex divorces. In the meantime, it's important to consider all your options during a divorce.

If you can't agree about custody with your spouse, consider trying a new approach focused on the children. Working with your spouse to make mutually beneficial custody and co-parenting plans will be best for everyone involved. Mediation may help you both put aside past issues and reach a workable solution for your family.

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Mary Kay Kramer, P.C.
1820 West Colorado Avenue
Colorado Springs, CO 80904

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