Child Custody in New York City Same-Sex Divorce


With the signing of the Marriage Equality Act of 2011, New York became one of the first states in the country to recognize same-sex marriage. Same-sex couples can now obtain a legal marriage in New York City and throughout the state, which provides them with several benefits which they previously were denied. Among the most important of these has to do with the fact that same-sex couples now enjoy greater parental rights both during marriage and in divorce. If you are preparing to get a divorce and share children with your spouse, it is important to do so with the help of a New York City divorce lawyer who is prepared to help you address the potential complexities of the situation.

Before same-sex marriage was legalized in New York, same-sex couples faced many challenges in respect to their rights as parents. Unless both parties adopted a child, only one of them would be legally recognized as a parent. If one of the partners was the child’s biological parent, the other partner would not have any type of legal recognition as a parent, even if he or she spent years playing an active role in the child’s upbringing and contributing to his or her economic needs. In the event that the couple broke up, the non-biological parent would have no rights to child custody or visitation, and any further contact with the child was entirely at the whim of the biological parent.


Now, things have changed, and same-sex parents have greater rights. A same-sex marriage is fully recognized under state law as being no different from a marriage between heterosexual partners, so when a child is born into such a marriage he or she should be considered to be the legal child of both spouses. As a result, each spouse would have the right to seek child custody and visitation at the time of a divorce, and either one may be awarded joint or sole legal and physical custody. The same is true of a child who is adopted during the course of the marriage, provided that both spouses have adopted the child. In addition to the right to seek custody and visitation, same-sex parents will also be held responsible to pay child support, and a divorce will typically end with one of the parents being ordered to make a monthly payment of support to the parent who has been awarded custody.


The determination of which parent will receive child custody in a same-sex divorce is the same as it is in any other divorce, so the family law judge will insist on a parenting plan which serves the best interests of the children. Whether you are involved in a contested or an uncontested divorce, your attorney will have the task of demonstrating that it would be beneficial for the children to spend time with you, whether you are seeking rights of custody or visitation. In the event that you are the non-biological parent of a child born prior to your marriage and you have not adopted the child, an attorney from the Law Offices of Andrew J. Spinnell, LLC may still be able to help you maintain your role in your child’s life by negotiating an agreement which will allow you some amount of visitation. Contact our office now to discuss the matter and to learn more about how we can help.