LGBT Divorce & Custody:
working through legal uncertainties

LGBTQ+ Child Custody and Parental Rights

LGBTQ+ families dealing with matters surrounding the custody of their children during a separation and divorce often discover they are faced with unqiue challenges that same-sex couples never have to contend with. These differences include having to take certain legal steps and overcome obstacles to ensure each parents’ parental rights are both established and protected. Since North Carolina does not have any clear laws surrounding child custody for LGBTQ+ families the process to obtain custody can easily become confusing and complex. Understanding the different steps needed to appropriately secure your parental rights can become overwhelming without the assistance of an experienced family law attorney.

Establishing Parental Rights by an Adoption or Parentage Order

In North Carolina there is a presumption that when an opposite-sex married couple has a child, they are both the biological and legal parents. Under this presumption, children born of legal same-sex marriages would also be the legal children of both parents, however this is not true. There is no guarantee a court will recognize both same-sex parents as legal parents of a child born, even if both same-sex parents are listed on the child’s birth certificate. Therefore, if you are a same-sex family you need to immediately ensure the parental rights of the non-biological parent are legally established.

For married same-sex couples one option is to have the non-biological parent adopt the child. These adoptions were once done as “step-parent” adoptions but now are performed as “confirmatory” adoptions. For unmarried same-sex couples it isn’t possible to adopt, however one can obtain an Order from the court establishing legal parentage, putting the non-biological parent on equal legal footing with the biological parent. Once an adoption is finalized or an Order is entered establishing the non-biologicial parent’s legal rights, custody will be handled in the same manner as an opposite-sex custody case in the event of a separation. For more information on how custody is determined in those cases, see the article here: https://dedwardslaw.com/family-law/child-custody/.

What happens if there was no Adoption or Legal Parentage Order put in place?

For non-biological parents without an adoption or other custody order in place, custody becomes a complex issue. Biological parents have constitutionally protected rights to their children that precludes third party interference. Without an establishment of legal parentage non-biological parents have no rights to seek custody or visitation of their children unless they can prove a “significant parent-like relationship” with the child, and that the biological parent acted in a manner inconsistent with their constitutionally protected rights. Put more simply, it must shown that the biological parent voluntarily allowed a non-biological parent to act as and form a relationship with the child as a parent. Some voluntary actions by the biological parent that may determine that he or she has acted inconsistently with their parental rights include:

  • Involving the non-biological parent in the decision making for the child;
  • Having the non-biological parent at the birth of the child;
  • Living in the same household, generally as a family unit;
  • Sharing in the child’s expenses with the non-biological parent; and
  • The presentation to others as a family unit, such as family and friends.

Daphne Edwards understands the unique legal challenges that LGBTQ+ families face when dealing with family law issues such as adoption and custody. She knows that your legal needs are different. Custody issues in same-sex families are highly dependent on the individual circumstances of each case, therefore it is essential that you have an experienced family law attorney help you protect your parental rights. Daphne works with LGBTQ individuals on all family laws issues, including adoptions, agreements, custody, and divorce. If you need assistance in any family law matter, contact us today at (919) 838-7160.