Same Sex Custody Issues
Arizona does not recognize same sex marriage or adoption. So when same sex custody issues arise, former same sex partners must pursue custody and/or visitation of their children outside traditional dissolution laws. So the time for a judge to make a decision about the custody, care and parenting time of children usually begins with an inquiry as to who the “legal parent” is. You might think that this question is an easy one to answer. But it is increasingly becoming one of many hotly contested same sex custody issues that are arising every day. Especially with the advent of modern reproductive technology.
Depending upon the answer to the question of “who is the legal parent”, it could be appropriate to file either a custody case or a visitation case in Arizona. Even if you or the other party is not the legal or biological parent, the law might still provide for visitation rights. Especially if you or the other party acted in the place of a parent (in loco parentis) to the child.
Once there has been a determination of whether certain same sex custody issues should be considered in the context of a custody or visitation case, the next question is “what is in the best interest of the child?” As with traditional custody cases, the parties (and judge) must consider a list of factors. Ones which include the wishes of the child, the wishes of the parties, the historical role of each party in the life of the child, the expected involvement of each party moving forward, the child’s adjustment to home, school and community, and many others. In visitation (not custody) cases, when considering the child’s best interests, the court will give enormous deference to the wishes of the legal parent’s desires. This is in line with seminal cases such as Troxel v. Troxel.
The pace at which laws are being written and re-written has not kept up with the changes of the world. While this might be bad news for some, it is also good news if you look at it in a different light; we are in a position to create the laws pertaining to lesbian, gay bi-sexual and transgender (LGBT) relationships. While we have the power to change things by advocating for new laws, currently, the key to defining same sex custody issues is in the interpretation of existing rules and statutes. While there may not be precedent that is an exact match to your case, with enough thought and creativity, you can pitch a theory to a judge that is based on reason and made in good faith.
Regardless of your same sex custody issues, do not be discouraged. The court will only seek a result that is best for your child. This is the thing that most parents want for their children, too.
Because of the intricacies and constantly evolving laws in the area of same sex custody issues, it is important to consult with an attorney so you can understand your rights. We have experience in handling cases for people who are/were in same-sex partnerships and LGBT relationships.