Same-sex couples face a unique set of challenges, but when it comes to divorce, child custody issues can be one of the most difficult to overcome. Along with the conventional parental dispute over who should have custody of the children, state laws may complicate matters or even cut one parent out of the equation completely.

The law can be complex and unfair to same-sex couples, but it’s important to understand how custody works, so you know what to expect when you file for divorce.

Avoiding a Legal Battle

Child custody issues are best handled outside of the courtroom for both heterosexual and same-sex couples. Court battles can be emotionally draining on the entire family and can often be traumatic for children.

If you and your ex can come to an agreement on physical custody, legal custody, visitation, and child support, it will save all parties a great deal of grief and stress.

But if you cannot come to an agreement, the court will settle the issue on your behalf. At this point, the proceedings can get complicated.

When Only One Parent is a Legal Parent

In many cases with same-sex couples, only one parent is the legal parent of the children. There are various reasons why the other parent isn’t considered a legal parent. The couple may live in a state where second-parent adoption is not an option, or the legal parent may not agree to the adoption.

In situations where only one parent is the legal parent, the other parent typically has no rights whatsoever and cannot seek custody or visitation rights.

Some states, however, now recognize second parents based on their intent to raise and conceive children, or their relationships with the children.

If you live in a state that does recognize second parents, it is critical to find an experienced, skilled attorney that has worked with same-sex couples and has handled similar cases.

When Both Parents are Legal Parents

In cases where both partners are legal parents of the children, both parties will have equal legal rights.

Both parents may be considered legal parents if they both jointly adopted the child, the non biological parent adopted the child through a second-parent or stepparent adoption, or the child was born into the same-sex marriage, which confers parental rights to both parents.

Child custody disputes in this situation would be handled in the same way as any other divorce. The judge will consider what is in the best interest of the child and resolve the dispute with this in mind.