Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Child Custody Following a Same-Sex Divorce in Monmouth

Since the landmark Supreme Court case of Obergefell v. Hodges recognizing that same-sex partners had the right to marry under the Fourteenth Amendment to the United States Constitution, same-sex couples have been afforded all of the same rights and privileges of marriage as everyone else.

As statistics will show, a big part of marriage is divorce, and in many divorce cases, there are children involved, which naturally raises questions and concerns about custody.

If you have questions about child custody following a same-sex divorce in Monmouth, contact a custody lawyer who is familiar with the increased difficulties a same-sex divorce may pose for parents.

Same-Sex Marriage in New Jersey

Two years before the United States Supreme Court ruled that same-sex partners had the fundamental right to marry, the New Jersey legislature successfully passed a bill legalizing same-sex marriage in February of 2013, however, the Governor vetoed this bill. While the New Jersey legislature was forming to vote on overriding the governor’s veto.

However, before the legislature could act, a New Jersey Superior Court judge ruled in Garden State Equal. v. Dow, 434 N.J. Super. 163, 169 (Super. Ct. 2013) that same-sex couples should be afforded the right to marry in New Jersey.

Following an appeal to the State Supreme Court, the Governor withdrew his appeal and the Superior Court ruling became the law and same-sex couples were thereby afforded all of the rights and benefits of marriage.

Child Custody in New Jersey

Parents have a fundamental right under both the New Jersey and Federal Constitution to have custody over their children. In fact, determining custody is one of the most demanding tasks a judge can face, because it requires that the judge display delicacy and sensitivity due to the impact a custody order can have on a child.

The court is always guided by what is in the best interest of the child, and will always attempt to ensure that the child has access to the love and affection of both parents. Pursuant to N.J.S.A. 9:2-4 the court must consider the following fourteen factors when reaching a custody determination:

  • The parents' ability to agree, communicate and cooperate regarding the child
  • The parents' willingness to accept custody and any history of unjustified withholding
  • The interaction and relationship of the child with the parents and other sibling
  • History of domestic violence
  • Safety of the child and/or either parent from physical abuse by other parent
  • Preference of child of sufficient age and capacity
  • Needs of the child
  • Stability of home environment
  • Quality and continuity of child's education
  • Fitness of parents
  • Geographical proximity of parents' homes
  • Extent and quality of time spent with child both before and after separation
  • Parents' employment responsibilities
  • Age and number of children.
  • This standard does not change merely because the child has two parents of the same sex, however, it can raise some unique concerns regarding child custody following a same-sex divorce in Monmouth.

     Special Considerations in Same-Sex Divorce

    It is very common in a same-sex marriage for one parent to be the biological parent of the child or children, meaning that the other parent is not biologically related to the child. While the law has established a preference for biological parents, this creates a unique problem for same-sex couples.

    Fortunately, a same-sex parent can maintain custody rights over their child following a divorce or separation by demonstrating that they are a psychological parent of the child, and it would not be in the child’s best interest to deny their custody rights.

    The presence of four elements is required to support such a conclusion, where the third party has lived for a substantial period with the legal parent and the child:

  • That the biological or adoptive parent consented to, and fostered, the other parent's parent-like relationship with the child
  • That the child and the parent lived together in the same household
  • That the parent assumed the obligations of parenthood by taking significant responsibility for the child's care, education, and development, including contributing toward the child's support, without expectation of financial help
  • That the parent has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature
  • Proving that a same-sex partner is a psychological parent can assure that a same-sex parent will have the same rights of custody and visitation as any other parent in the state.

    Contacting a Divorce Attorney

    If you are going through a same-sex divorce and have questions or concerns about a child custody following a same-sex divorce in Monmouth, do not wait to contact a dedicated and sensitive Monmouth County child custody lawyer.

    An attorney can help ensure your rights as a parent are protected and recognized, and that you can continue being part of your child’s life.