In 2015, Obergefell v. Hodges gave LGBTQ+ the right to marry. The decision also gave LGBTQ+ couples the legal parental rights to any child born during the marriage. California state law ensures that “children have frequent and continuing contact with both parents after the parents have separated, divorced, and or ended their relationship.” California law also “encourages parents to share the rights…except when the contract would not be in the best interests of the child.” Same-Sex child custody decisions and relating contingent factors are nearly identical to heterosexual decisions, as California state law states: “custody determinations will not consider either parent’s sex, gender identity, gender expression, or sexual orientation. (§ 3011(d).
Divorces and separations are complicated, draining, and taxing for everyone involved, especially the children. When navigating divorce and deciding on child custody and visitation agreements, the children are the top priority. Parents and the courts must ensure that children’s needs are met and whatever is decided is in their best interest.
How is Custody Decided?
Child custody can be decided in two ways: with court orders or without court orders.
Deciding Child Custody Without Court Orders
California Family Code establishes that without child custody court orders, presumed or biological parents are “equally entitled to the custody of the child” (§3010). Parents have the option of determining custody and visitation on their own without the court’s help. In such instances, the parents decide the best course of action for their child informally.
Parents craft and agree upon the visitation schedule and each of their rights and responsibilities concerning the child. However, if either parent violates the agreement, the court will not recognize it. Hence, the court cannot enforce it.
Deciding Child Custody with Court Orders
In situations where parents cannot agree upon child custody and visitation agreements informally, a judge is used as an intermediary to help figure out what arrangements are in the best interest of the child. In situations where parents are forced to go to court, it is best to consult with an experienced attorney.
In the state of California, courts do not automatically assign custody to the mother or father, the court examines numerous factors related to the child’s best interest when deciding which parent has legal and physical custody. According to California state law, the court specifically considers the following:
- The child’s age
- The child’s health, safety, and welfare
- The child’s relationship with each parent/ spouse/ person seeking custody
- The other parent
- The amount and type of contact with each parent
- The home environment of each household, including abuse of substances, abuse allegations
- The child’s attachment to their current school and community
- The child’s preferences regarding their opinion on custody and visitation (typically children fourteen and older) (Cal. Fam. Code § 3042 (a)).
Determining Legal Parental Rights
First, when going through a divorce, same-sex couples need to determine the extent of their parental rights; for instance, whether both partners share legal parental rights to the child or if only one parent is the legal parent.
Determining which parents have legal rights to the child is essential; if one parent is not a legal parent, they may face difficulties obtaining legal or physical custody of their child. If one parent has not established a legal right to the child, they have no right to request visitation or custody of the child and have no financial obligation to pay child support to the other parent. However, if the non-legal parent wants to establish paternity, California state law allows them to try to establish paternity at any time in such cases of parentage by estoppel.
Second, parents should locate the corresponding legal documentation if they proceed to court in the next step. The proper documentation of legal parental rights assures spouses of visitation and custody of their child, except when it is not in the child’s best interest. Such documentation can include adoption papers, birth certificates, or a voluntary declaration of paternity.
Same-sex parents have the legal right to the child if:
- They are the biological parent, such as the birth mother
- The couple jointly adopted the child
- They are the presumed parent and or have an established a parent-child relationship
- A voluntary declaration of paternity has been established with the state
- The child was adopted through a step-parent adoption or second-parent adoption
Types of Custody
There are two types of child custody: Legal Custody and Physical Custody. Legal custody grants the legal guardian with decision-making rights and responsibilities; this may include significant decisions regarding the child’s life, such as relocating, changing schools, or medical decisions. On the other hand, physical custody deals with questions like where, when, and whom the child will spend their time.
Legal Custody
Joint Legal Custody
In cases of joint legal custody of a child, parents “share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child” (Cal. Fam. Code §3003). Under California state law, granting joint legal custody does not automatically grant joint physical custody of the child (Cal. Fam. Code § 3085).
Sole Legal Custody
Grants one parent the right and the responsibility to make the decisions relating to health, education, and welfare. The other parent has no legal right to the child and no decision-making authority. (Cal. Fam. Code §3006).
Physical Custody
Joint Physical Custody
California state law explains that “Joint physical custody means that each of the parents shall have significant periods of physical custody” (Cal. Fam. Code §3004). In these cases, one parent has legal custody of the child, the decision-making authority, and the other parent does not but still has visitation rights. In circumstances where parents share physical custody, the details of the arrangements are included in the visitation schedule.
Sole Physical Custody
The child resides only with one parent. Typically, the other parent is uninvolved in the child’s life.
LGBTQ+ Parental Rights
Establishing Parent and Child Relationship: Presumed Parental Rights
Both parents have the legal right to the child in instances of presumed parenthood. Aside from being the biological parent, The state of California presumes a person to be a child’s presumed parent in these circumstances:
- The birth mother’s partner if the child is born during the marriage/ domestic partnership or 300 days after the marriage was terminated. (Same for cases of assisted reproduction)
- The partner agrees to have their name on the birth certificate. (Such as in situations of assisted reproduction or unmarried couples)
- The presumed parent and the child’s mother have attempted to marry each other before or after the child’s birth.
- Parentage by Estoppel: The presumed parent has treated the child as their own and has/had a legal parent-child relationship. There does not need to be a biological relationship between child and parent, but in these circumstances, the presumed parent requests visitation, custody, and financial support if divorce or separation occurs.
Parents have assumed the child’s legal right through presumption in these situations. Once the presumed parent has established legal parent rights they have the same rights as the biological parent. If divorce or separation occurs, the parent has the legal right to the child and then can create a legal and court-ordered child custody agreement.
Voluntary Declaration of Paternity
In some instances, both parents may want legal rights to the child, such as if parents are not married, or in cases of assisted reproduction. In these situations, a voluntary declaration of paternity is needed to establish legal parental rights.
When establishing paternity, partners must prove to the court that they intend to care and provide for the child. After paternity is established, parents can request visitation and custody orders and child support depending on marital status.
Paternity must be established if a parent desires to care for the child and be involved in their life. Without establishing paternity in instances of separation divorce or nullification, the other parent has no legal right to the child, and cannot have an agreement made that is enforceable by the court.
A Child with More Than Two Parents
Under California state law children can have more than two parents. For example, a child’s mother and father had divorced when the child was very young. The father remarries to a spouse that intends to financially support and continue care for the child; the child has more than two parent-child relationships. In these cases, the father and his new spouse can file a voluntary declaration of paternity requesting legal rights to the child.
Contact Pride Legal
If you or a loved one have more concerns about child custody, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.