Child Custody in Same-Sex Divorce 

Anderson, Creager and Wittstruck, P.C., L.L.O. 
Little girl watching gay parents argue in kitchen

In recent decades, same-sex marriage and family rights have been at the forefront of legal and societal conversations. The LGBTQ+ community's ongoing fight for equal recognition under the law has led to significant change, including the nationwide legalization of same-sex marriage in 2015. However, same-sex divorcees continue to face unique challenges, especially when it comes to child custody during parental separation or divorce.  

Child custody arrangements are a critical component of any divorce proceeding, serving as the foundation that ensures the well-being and stability of the children involved. At Anderson, Creager, and Wittstruck, P.C., L.L.O., our team is experienced in handling divorce and family law cases for same-sex couples, offering them the legal representation they need to understand the evolving laws and diverse family structures.  

Understanding Child Custody in Same-Sex Divorce

Child custody refers to the legal authority to make decisions about the well-being, health, and care of a child. Arrangements for child custody can directly impact a child's emotional security, development, and overall well-being during and after the divorce process. Generally, it is categorized into two main types: physical custody and legal custody.  

Physical custody designates where the child will primarily reside. This can be awarded solely to one parent (sole physical custody) or shared between parents (joint physical custody) where the child spends significant time with both parents. Legal custody, on the other hand, refers to the rights and responsibilities of making major decisions about the child's upbringing, including education, healthcare, and religious training. Similar to physical custody, legal custody can be assigned to one parent (sole legal custody) or shared between both parents (joint legal custody).  

In Nebraska, the courts prioritize the child’s best interests when determining both physical and legal custody arrangements and strive to make sure the child maintains a strong relationship with both parents, where feasible. For same-sex couples, navigating these decisions requires an understanding of how the law applies to their specific family situation. 

Legal Rights of Same-Sex Parents

The legal rights of same-sex couples in Nebraska have seen significant evolution following the nationwide legalization of same-sex marriage. In the context of child custody, same-sex parents are accorded the same legal rights as heterosexual couples, although there can be potential challenges due to the non-biological relationship with the child in some cases. 

For same-sex couples, both parents can be recognized legally through adoption or being listed on the birth certificate at the time of the child’s birth. This is essential for establishing legal parenthood, which is a prerequisite for seeking custody or visitation rights in the event of a divorce. If a non-biological parent has not legally adopted the child, they may face challenges with seeking custody or visitation rights. However, they can present evidence of a parent-like relationship with the child, including living in the same household, filling caregiving roles, and providing financial support, to argue for such rights. 

Same-sex couples need to be proactive in legal matters concerning their parental rights, including second-parent adoption, to mitigate potential legal hurdles. Consulting with a legal professional who understands family law as it applies to LGBTQ+ families is crucial to protecting the rights of the parents and making sure the child’s best interests are always front and center. 

Factors Affecting Custody Decisions in Nebraska

When determining child custody in the context of same-sex divorce in Nebraska, the courts prioritize the child's best interests without discriminating against the sexual orientation of the parents. This means that same-sex parents have equal standing in custody cases, and the decision will revolve around factors such as: 

  • The child’s emotional and physical safety: The court assesses each parent's capability to provide a safe and stable environment that supports the child's emotional well-being and physical security. 

  • The mental and physical health of the parents: The court considers the parents' physical and mental health as it may impact their ability to care for and nurture the child. 

  • The child’s developmental needs: Special attention is given to the unique needs of the child, including educational, social, and health-related requirements, and how each parent meets these needs. 

  • The child's relationship with each parent: The quality of the relationship and the bond that the child shares with each parent play a critical role in custody decisions. 

  • The willingness of each parent to support the child’s relationship with the other parent: The court evaluates each parent's commitment to facilitating and encouraging a healthy and ongoing relationship between the child and the other parent, including visitation arrangements. 

  • History of abuse or neglect: Any instance of abuse or neglect by either parent is taken into serious consideration, with the child’s safety being the primary concern. 

  • Each parent’s ability to provide consistent care: This includes evaluating the parents' availability to the child, their work schedules, and their ability to maintain a routine that best supports the child's daily needs. 

Courts in Nebraska aim to ensure that custody arrangements foster a loving and stable environment for the child, encouraging a balanced life that includes continued relationships with both parents whenever possible. For same-sex couples, these decisions are made with the same set of considerations, ensuring that each parent, regardless of biological connection, is given fair consideration based on their relationship with and ability to care for the child. 

Child Custody Challenges for Same-Sex Couples

Despite equal standing under the law, same-sex couples can face unique challenges when filing for child custody during divorce in Nebraska. These challenges often stem from societal biases and the complexity of establishing legal parenthood for non-biological parents: 

  • Societal Biases: Although the courts are instructed not to discriminate based on sexual orientation, implicit and unconscious biases can influence decisions. Same-sex couples can counteract this by thoroughly documenting their involvement and commitment to their child's welfare, emphasizing the depth of their relationship and their role in the child’s upbringing. 

  • Establishing Legal Parenthood: A primary challenge is proving legal parenthood, especially for the non-biological parent. This hurdle can be overcome by ensuring that both parents' names are on the child's birth certificate and adoption papers, including second-parent adoption. These legal measures provide a solid foundation for asserting parental rights during custody disputes. 

  • Demonstrating Cooperative Parenting: If you cannot establish legal parenthood, the court may look at how cohesively you share parenting responsibilities. This includes showing both parents' commitment to acting in the child's best interest, regardless of their relationship status, such as providing proof of consistent involvement in caregiving, providing financial support, or coordinating decision-making for the child's well-being. 

By carefully addressing these challenges, same-sex couples in Nebraska can strengthen their cases for child custody during divorce, safeguarding their parental rights and ensuring the best outcomes for their children. 

Seek Experienced Legal Counsel

When it comes to child custody for same-sex couples going through a divorce, same-sex parents are given the same legal rights and considerations as heterosexual couples, but they may still face unique challenges. With the evolving nature of LGBTQ+ family law, a knowledgeable attorney can effectively present your case, highlighting your strengths as a parent and advocating for your rights.  

At Anderson, Creager, and Wittstruck, P.C., L.L.O., our team is equipped with the necessary experience and understanding of same-sex divorce to help you approach your child custody case. Located in Lincoln, Nebraska, we proudly serve clients throughout Lancaster County, Gage County, Saline County, Seward County, Otoe County, Cass County, and Saunders County.