Members of the LGBTQIA+ community can face complex issues when going through a divorce and seeking custody or visitation rights for their child. For example, if you are not the child’s biological parent, you may have a harder time obtaining custody rights.
An Albany LGBTQIA+ child custody lawyer can help you fight to secure your parental rights when you are going through a divorce or separating from your partner.
Parental rights refer to a specific legal relationship between a parent and their child. These rights include the parent’s obligation to provide financial support and their authority to make important life decisions on the child’s behalf. In many cases, parental rights are established because the child is the biological offspring of the parents. According to New York Domestic Relations Law § 24, parental rights are also automatically assumed when a child is born during a marriage.
Courts have also applied this presumption to children born to LGBTQIA+ couples. However, since many LGBTQIA+ couples have children through non-traditional methods such as assisted reproduction, establishing parental rights can present some unique challenges. For instance, sometimes, only one parent has a biological connection to the child.
In 2021, the state implemented the Child-Parent Security Act, New York Family Court Act § 581-101, which legally establishes parental rights when a child is born to a surrogate. However, the statute only applies to gestational surrogacy. Adoption is another route to securing parental rights for LGBTQIA+ couples. N.Y. DOM § 110 permits unmarried people, adult married couples, or unmarried domestic partners to adopt.
While the rule does not specifically address LGBTQIA+ couples, the New York Marriage Equality Act provides them the same rights as traditional married couples. An Albany LGBTQIA+ child custody attorney could help explain the most effective way to establish parental rights based on the particular situation.
Parental custody can refer to two different types of custody in New York.
Physical custody refers to the parent with whom the child actually lives and who is responsible for the child’s physical care and supervision.
Legal custody describes the parent with the authority to make important life decisions on how the child is raised or cared for. This can include the power to make decisions on medical care, religious choices and education decisions.
While guardians with physical custody can also have legal custody, the two terms are distinguishable.
When parents with children are in the divorce process, they will have to reach a mutual resolution on custody and visitation rights. However, many parents cannot agree on these rights when facing divorce. If they cannot reach an agreement through methods such as mediation, a parent has the right to file a custody petition under N.Y. FCT § 651 to have the issue decided by a judge in family Court.
It is important to note that when couples leave the decision in the hands of the Court, their custody and visitation rights may be impaired post-divorce or post-separation if they did not clearly establish their parental rights. This makes consulting with an Albany lawyer especially critical when LGBTQIA+ parents are facing a child custody battle.
According to N.Y. DOM § 240, when a parent files a petition for custody, the Family Court will issue a custody and visitation Order based on what is in the best interests of the child. This standard is not specifically defined, and Courts can consider a wide-range of factors to make custody decisions, such as:
Since laws in this area are rapidly developing, a dedicated LGBTQIA+ legal professional in Albany could help ensure that a spouse or partner does not lose their custody or visitation rights.
The divorce or separation process can take a heavy emotional toll on both partners. This burden is magnified when a parent faces the prospect of losing the ability to see their child.
An Albany LGBTQIA+ child custody lawyer is ready to help you fight for your rights, regardless of the biological relationship with your child. Speak with our team today to schedule a complimentary consultation.
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