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Who Gets Child Custody in Gay Divorces? (Video)

Gay marriage has been legal nationwide since 2015 and since 2014 in Oregon. While every couple, regardless of gender, hopes and intends for their marriage to last the test of time, sometimes that just isn’t in the cards. As time passes, there’s a steadily-growing collection of same-sex couples who have felt the need to split up. More importantly, many of these couples have children, making them some of the first to have to sort out child custody decisions in gay divorces.

Custody decisions can be challenging enough in heterosexual splits. Even with decades of precedent and clear guidelines, deciding on custody often leads to one parent feeling left out or unsatisfied. The process of making fair, legal custody agreements in same-sex separations is confused by the number of non-standard parenting arrangements that can be found in the community.

Understanding why same-sex splits complicate child custody decisions is the first step to finding an agreement that works for you.

The Three Common Custody Arrangements in Gay Marriages

Because of how recently gay marriage became legal, many same-sex couples have been in life partnerships since long before they were legally married. As a result, these couples often made arrangements and decisions that acted as a workaround for their lack of legal rights. Now that they have gotten legally married, these past arrangements often lead to complications if they proceed to get divorced.

Custody is one situation where these complications are common. It’s one of the very few scenarios where a divorce directly affects the life of a third party. Oregon has firm guidelines for standard child custody orders, but the variety of parenting arrangements common in gay marriages has led to many non-standard results. In general, parenting arrangements in gay marriages can be broken into three categories, each of which will see different resolutions.

Initial Parentage

Oregon now allows same-sex parents to list each other on a baby’s birth certificate. If one partner gives birth to a baby, their wife can sign the birth certificate and become the child’s legal parent from the moment they’re born.

This is the parenting arrangement most similar to heterosexual parentage. In the eyes of the law, both parents listed on the birth certificate have equal right to parent their children, and so they will receive equal consideration if the parents should require a custody order down the road. It also has the most precedent available, though not in same-sex divorces.


There are two types of adoption common to same-sex parents. First, if the parents are married when they decide to adopt, then during the adoption process, they are both certified as the child’s new legal parents. The result is much the same as when two parents are identified on a birth certificate; they have equal priority in the case of a child custody order.

On the other hand, some gay couples get married when one partner already has children. In this case, the other partner can often adopt the children in a process known as “second-parent adoption.” The adopting parent essentially gains the same legal rights to care for the child as the biological parent. Second-parent adoption is recognized in more states than initial same-sex parentage, so some parents may have both signed the baby’s birth certificate and adopted them.


Finally, one of the most common same-sex parenting arrangements is that of stepparenting a child. Unlike either adoption or initial parentage, becoming a stepparent requires nothing more than marrying the child’s legal parent. While this is simpler, it also gives the stepparent very few legal rights regarding the kid if they should get divorced in the future. Even if the stepparent has cared for the child like their own, they have significantly less legal standing than the biological parent.

How Divorce Complicates Child Custody

While all three types of parenting arrangements can work well in the context of marriage, they can lead to significantly different outcomes during a divorce.

Situations in which both parents are on the birth certificate or adoption record will resolve most simply. In these cases, both parents have equal rights to consideration. Oregon most often awards full custody to one parent and gives the other parent the right to visitation. In the case of initial parentage and adoption as a couple, both parents are owed equal consideration by the court to receive full custody.

Meanwhile, second-parent adoption adds the first layer of complication. Many courts will weigh the biological parent’s relationship with the kid more heavily than the adoptive parent’s. While both parents technically have full legal rights to the kid, the birth parent may be more likely to receive full custody, and the adoptive parent may only receive visitation.

Finally, in parenting relationships where one person is “just” a stepparent, the question of custody may not even arise. Legally, stepparents don’t have any right to custody unless they have also adopted the child. For a stepparent to get responsibility for the children, they will need to fight a hard case to demonstrate:

  • Their relationship with them
  • The biological parent’s lack of fitness to care for their kid
  • The reasons why the child should stay with them instead of being cared for by another biological relative

A stepparent receiving any legal concession to visit or parent their step-children is uncommon and requires significant effort to achieve.

Support Your Children

No matter how you are legally connected to your children, you care for them all the same. You deserve to remain in their lives, and they need you to help guide them through life. Depending on how your marriage and parenting relationships were structured, achieving that might be difficult. If you’re considering separating from your same-sex partner, you should take steps to protect yourself and your children. Reach out to an experienced gay divorce lawyer today to discuss your options. No matter how you’re related to your kids, a qualified attorney can help you navigate the legal system and get the best possible outcome in your case.