Children of Divorced Same-Sex Parents

Since same-sex marriage is legal in the state of Maryland, it is important to understand the nuances and issues that could arise from divorce of same-sex marriage, including that of children. A child born or conceived during a marriage is presumed to be the legitimate child of both spouses, not just the spouse who gave birth to the child.

In the past when a same sex couple adopted a child in the state of Maryland, only one of them actually adopted the child from the agency, country or service because two people without a legal tie to one another are generally not permitted to adopt a child together. Because of this, only one parent in a same sex unwed relationship is deemed to be legally recognized parent of the child.

Because same-sex marriage became legal in Maryland in 2013, any child adopted to same-sex married couples will be the children of both parents and both parents will be able to make legal decisions for that child. The same third party visitation applied to heterosexual couples is applied to same-sex married couples. The grandparents will have the burden of proving the parents are unfit or exceptional circumstances exist.

Some factors used to assess fitness include parental characteristics such as age, stability and the capacity and interest of a parent to provide for the emotional, social, moral, material and educational needs of the child. In custody matters, Maryland Courts presume that a child’s best interests are better served in the care and custody of his or her natural parents rather than a third party but if the Court finds exceptional circumstances exist, the Court will determine what is best for the child.

Contact an experienced attorney if you find yourself in same-sex divorce with a child.