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What to know about custody in same-sex marriage dissolution

On Behalf of | Oct 29, 2022 | child custody | 0 comments

The Supreme Court’s legalization of same-sex marriage in 2015 paved the way for legalized marriage equality in New Jersey. However, changes in the Supreme Court make many nervous about the long-term implications for the LBGTQ+ community. To protect the state’s populace, the NJ governor signed marriage equality into law in January 2022.

The law provides all couples the same rights and protections, regardless of sexuality or gender identification. Marriage laws also regulate divorce and child custody. For same-sex couples getting a divorce, child custody can be a complex issue.

How custody works when both parents have legal custody

If both parents share legal custody during the marriage, child custody in a divorce works the same as it does between two biological parents. Whether both parents adopt the child or one parent is the biological parent, and the other is the adoptive parent, both parents have equal rights under the law.

How custody works when only one parent has legal custody

In same-sex marriages involving children, one parent may have legal custody of a child while the other doesn’t. This situation can arise under several circumstances, such as when one parent has a biological child from a previous relationship.

Though these situations can add a layer of complexity to a divorce involving a child, they do not necessarily mean one parent has more rights than the other. The non-biological or non-custodial parent may have in loco parentis status, affording that parent equal rights in a child custody hearing.

When a divorce involves children, the law and the courts prioritize the children’s best interests when deciding custody. The same holds when same-sex marriages dissolve, though unique circumstances can create additional challenges for divorcing couples.