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Who Gets Custody in an LGBTQ Divorce?

On Behalf of | Mar 31, 2021 | Divorce |

While same-sex parents have the same rights and responsibilities as heterosexual parents, determining who gets custody in an LGBTQ divorce can be complicated.

Since same-sex marriage became legal in New Jersey in 2013, LGBTQ couples have the same rights as heterosexual couples. However, when same-sex partners get married and have children, deciding who gets custody can be problematic.

If you are divorcing your same-sex partner with whom you share children, it is essential to consult with our child custody attorneys at at Lomurro, Munson, Comer, Brown, & Schottland to help you navigate the LGBTQ divorce process in New Jersey.

Who Gets Custody of a Child in a Same-Sex Divorce?

New Jersey’s child custody laws apply to all parents regardless of sexual orientation, gender, and marital status. Same-sex parents have the same rights and responsibilities as heterosexual parents in New Jersey.

However, determining who gets custody in an LGBTQ divorce may be an issue because same-sex partners are typically unable to conceive a child together biologically.

Nonetheless, N.J.S.A. 9:2-4 requires courts to issue orders regarding child custody and parenting time based on the children’s “best interests.” New Jersey law presumes that it is in the child’s best interests to have frequent and continuing contact with both parents.

Types of Custody Arrangements in LGBTQ Divorces in New Jersey

In order to understand how child custody is determined in LGBTQ divorces, you need to know about the different types of custody arrangements that are recognized in the State of New Jersey:

  • Joint legal custody. When parents share joint legal custody, they must make joint decisions for their children on major issues, including healthcare, religion, education, and others. Still, one of the parents is usually appointed the primary custodial parent.
  • Sole legal and physical custody. This type of custody arrangement is not common in New Jersey because it is extremely rare for courts to award a parent sole legal and physical custody. When a parent has sole custody, he or she has exclusive rights concerning the child.
  • Sharedlegal and physical custody. When parents share legal and physical custody rights, they have equal rights to make major decisions for their children. With this custody arrangement, the child spends an equal amount of time with each parent.

How is Child Custody Determined in LGBTQ Divorces in New Jersey?

Since same-sex partners cannot conceive children biologically, determining who gets custody in the event of an LGBTQ divorce can be tricky. In same-sex marriages, only one spouse can be a biological parent of their child unless the child is adopted.

The non-biological parent will still be considered a legal guardian of the child if he or she adopted the child during the LGBTQ marriage. New Jersey has what is known as the “psychological parent” doctrine. It means that a non-biological parent may be granted certain custodial rights.

Under the psychological parent doctrine, commonly referred to as the “de facto parent” doctrine, New Jersey courts consider the non-biological parent’s role in parenting and determine whether that parent is willing to serve as the child’s parent following a divorce or separation.

While the process of determining child custody in an LGBTQ divorce is not so different from the process of awarding custody rights in heterosexual divorce, it is still advised to consult with a skilled lawyer to discuss your particular situation.

Contact our Monmouth County family law attorneys at Lomurro Munson LLC, to understand your parental rights as same-sex partners in an LGBTQ divorce in New Jersey. Call 732-482-9285 to receive a consultation.