Same-sex divorce law is a rapidly developing area, especially in Oregon, where previous to the Supreme Court decision, the state obstructed same-sex couples their right to a state recognized marriage. One especially delicate area of law is child custody. As discussed in my previous post, same sex couples are winning the right to have both spouses named on the birth certificate. In other cases, given the physiological nature of same-sex relationships, often a third party is required to produce children and the legal relationship of that third party has a great bearing on custody should the same-sex marriage dissolve.*
If at the time of the divorce both same-sex spouses are the legal parents of the child, there is no further special consideration and the case proceeds identically to opposite-sex marriages. Adoption with both spouses named, step-parent adoption, getting named on the birth certificate or birth during the same-sex marriage are a few methods by which same-sex parents can both become legal parents.
A very common point of contention comes when one of the same-sex spouses is not the legal parent. Currently, there are no special law or rights, aside from third party rights, for same-sex non-legal parents to use. This can create a world of confusion because it is difficult for a third party parent to get the same custodial rights as a legal parent in the same situation.
Given that the area of same-sex law is still forming, it is important to consult with an attorney familiar with the local judiciary and laws. Feel free to call Landerholm Law at (503)227-0200 for to consult with an attorney experienced in same-sex custody issues.
*Author note: It is possible through surrogacy for a child to carry the genetics of both same-sex spouses.