Same Sex Custody

What are your rights as a non-biological mom or dad? Are you out of luck if you didn’t formally adopt?

If you and your partner separated, will you have visitation rights to spend time with your little one?


I'm Lawyer Alexandria Serra, this is Lawyer Talk Thursday (catch it every week on Instagram @alexandriaserra), and you're about to find out.


On this expansion of divorce with same-sex partners we’re discussing how child custody and parental rights can be affected.


Here are the top two things you need to know:

  1. If you’re going to have a child with your partner, it’s better to do so after marrying your spouse and make sure you are on the birth certificate; and
  2. The birth certificate is evidence of being the 2nd parent but it’s not enough.


Let’s take a look at the most common questions people ask:


Common Question #1: What if either spouse is pregnant or gave birth to a child during the marriage?


If either spouse is pregnant or gave birth to a child during the marriage, the parentage of the child may need to be established by court order before you can finish the divorce.


Common Question #2: What if you and your partner have an adopted child but only one of you formally adopted the child?


The parent who has yet to legally adopt the child needs to do a 2nd parent adoption or file an Adjudication of parentage with the courts.



Be Proactive in Protecting Your Parental Rights!


Don’t wait to ensure you and your child’s relationship won’t be negatively impacted in the event of a divorce. Here’s how you protect yourself from the beginning …


The first thing you can do when your child is born is filing an Adjudication of parentage.


Take it a step further and formally and legally adopt your children if you are not the biological parent. If you want to formally adopt, here are the steps:


  • Submit a petition for adoption that includes FBI and criminal background checks. This isn’t required, but it’s good to have the information. If conception was done with the help


of a sperm donor then you’ll want to file for adoption with an unknown father and explain the details in the petition;

  • Obtain fingerprints with the Sheriff's department to be submitted with your background check
  • The court will appoint an attorney ad litem for the child to make sure the adopting parent isn’t unfit;
  • The court will order a home study (in some states and counties); and
  • Appear at an adoption hearing;


Too often, non-biological parent’s rights are challenged because they never adopted their child, even when their name is on the birth certificate. Remember, you can get an Adjudication of parentage and that is enough. You don’t need an Adjudication and an adoption.


Of course, protecting parental rights is important outside of the context of custody as well.


A parent-child relationship must be recognized for state and federal benefits, inheritance rights, making medical decisions, and other critical decisions.


Protecting our families by making sure that their relationship with both of their parents is legally secure is one of the most important things we can do for our children.

Hire a badass lawyer. If you know another amazing LGBTQ+ lawyer or ally, please email me!!! A special thanks to Nora Lovett for her insight on this topic. Show her some love on Instagram!

 @noralove (LGBTQIA+ Family Law)