LGBTQ Child Custody Attorneys in Pittsburgh
Legal Services for Parents in Allegheny County & Surrounding Areas
Click here for print-friendly PDF format.
In the custody context, both same-sex parents will be treated equally if there has been a valid adoption by both parents. An adoption decree provides both adoptive parents with rights to the child, including the right to seek custody in the event of a divorce. Therefore, if there has been a valid adoption, the court will determine custody the same way it does for opposite-sex parents: by looking at the child's best interest.
Specifically, courts will determine the best interest of the child by considering all relevant factors (giving weighted consideration to those affecting the child’s safety), including:
- Which parent is more likely to allow ongoing contact between the child and the other parent
- Any history of abuse committed by a parent or member of the parent’s family
- The parental duties that each party performs on the child’s behalf
- How custody arrangements will affect the stability of the child’s education, family life, and social life
- The availability of extended family
- How many children are involved
- The child’s preference if they are mature enough
- Whether either parent has tried to turn the child against the other parent
- Which parent can provide and maintain a loving and stable relationship with the child
- Which parent is more capable of meeting the child’s daily physical, emotional, educational, and developmental needs
- Where each parent is located
- The relationship between the parents and each parent’s willingness to cooperate with each other
- Each parent’s mental and physical health
- Any other relevant factor other than gender
Where a parent is not biologically related to the child and has not adopted the child, that parent's right to custody of the child may not be protected under Pennsylvania law. The Pennsylvania Supreme Court recently said a former same-sex partner of a child's biological mother could not seek custody since she was not biologically related to the child and had not legally adopted him. In this case, the party seeking custody was not married to the mother of the child, however, even where the parents are married and are both listed on the birth certificate, the law remains unsettled, highlighting the importance of going through with a formal adoption.
In order for same-sex parents to ensure their right to custody in the future, it may be best to legally adopt the child.
Same-Sex Parents & Adoption
With major advances in technology – like the ability to donate eggs and sperm, in vitro fertilization using alternative insemination, and surrogacy – it is becoming increasingly easier for same-sex couples to build a family.
Unfortunately, Pennsylvania law has not necessarily caught up with all of this progress. Even if same-sex couples are married, and even if the hospital listed both parents on the birth certificate, the law as it stands may not definitively protect the parental rights of both parents.
While a biological or adoptive parent's rights will always be protected, the parental rights of the other partner may not be. In order for same-sex parents to ensure their parental rights in the future, they may want to adopt the child together. Upon finalizing the adoption, the adoptive parents become the child's legal parents. This means that they assume all the responsibility of being a parent to that child. It also means that both parents will have legal rights to the child if they split up in the future. In other words, if the parties to an adoption separate, both parties will be entitled to seek custody of the child. This may not be the case for a partner who is neither a biological or adoptive parent.
There are also various other benefits that stem from formally adopting the child, including:
- Insurance benefits
- Inheritance benefits
- The right to be involved in important decision making (e.g., the right to seek legal custody)
Additionally, once the adoption is finalized, the adoptive parents can get a new birth certificate that shows the child's original birthday, but will show the adoptive parents as the parents, and the name that the adoptive parents have given the child as the child's name.
So, when is the best time to get the ball rolling on the adoption process? ASAP! You do not necessarily need an adoption agency involved, but you will need court approval.
If you have questions about your custody rights or how you can adopt a child as an LGBTQ parent, call Notaro Calabrese & Epstein, P.C. at (412) 281-1988.
If you have questions about your custody rights, call Notaro Calabrese & Epstein, P.C. at (412) 281-1988.