The very nature of a same-sex marriage prevents both spouses from having a direct biological connection to their children. However, same-sex divorces often lead to shared custody, as the New Jersey family courts may recognize the parental rights of both.
There are three specific scenarios in which both parents in a same-sex couple may have legal parental rights. When do the New Jersey courts generally award shared custody in a same-sex divorce?
1. After a stepparent adoption
In some cases, the children in the family may be the product of a previous relationship. One spouse may have adopted children before meeting their current spouse. A stepparent adoption formalizes the legal rights of the other parent who does not have a legal or biological connection to the children.
2. After a birth during the marriage
Same-sex couples may use medically-assisted reproduction, such as in vitro fertilization (IVF) or surrogacy, to grow their families. New Jersey’s law extending a presumption of parentage to both spouses for children conceived or born during a marriage extends to same-sex couples and children born through medically-assisted reproduction.
3. After acting as a psychological parent
The New Jersey family courts recognize the concept of a psychological parent even without legal adoption or a presumption of parentage. If the spouse who is not a legal or biological parent lived with their stepchildren, supported them and filled the social role of a parent, the courts may recognize them as a psychological parent during child custody proceedings.
Resolving child custody disagreements can be one of the most challenging aspects of a same-sex divorce. Spouses preparing for custody negotiations or litigation may need guidance to ensure they understand their rights and what the law recognizes in the Garden State. Thankfully, seeking personalized legal guidance is always an option.