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Will I be able to get child custody after a same-sex divorce?

When same-sex couples in California decide to start a family, they have several options available. They may choose to adopt, use a surrogate mother or use artificial insemination. It is important to carefully consider these options, as they may impact child custody in the event of a same-sex divorce. The process of determining child support and child custody for same-sex couples may be complicated. In addition to the child's best interest, the family court will also have to consider biological parents, surrogate parents or adoptive parents.

A parent may apply for full custody that will provide both physical and legal custody to one parent, or joint custody where both parents will share child custody. However, in most family courts, the primary consideration is the best interest of the child. With this in mind, the court will consider the wishes of the child -- depending on his or her age and maturity. Another aspect that will be considered is the financial stability of the parents.

The biological relationship of the parent seeking child custody will play an important part in the court's decision. If the applying parent is the biological parent of the child, he or she will likely get custody. However, exceptions exist, and a non-biological parent who legally adopted a child born to a same-sex partner may be considered for child custody. While these considerations are specific to same-sex parents, the court will also use guidelines appropriate for heterosexual couples when considering custody of adopted children with no biological connection to the parents. Matters such as suitable accommodation, history of child abuse and more will be measured against normal requirements.

California couples that are considering bringing a child into a same-sex marriage may benefit from consulting with an experienced attorney who concentrates on same-sex family law. Obtaining timely advice related to the legalities of the different options may allow one to avoid future litigation in the unfortunate event of a divorce. Our same-sex divorce website may provide more information specific to your needs.

Source:, "Factors Used to Determine Child Custody for Same-Sex Parents", Debrina Washington, Oct. 31, 2014

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Victoria S. Linder Law Office
5303 Folsom Boulevard
Sacramento, CA 95819

Phone: 916-905-4805
Fax: 916-498-0127
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