NY same-sex couples and child custody: challenges still present

Posted by Lauren S. CohenSep 17, 20140 Comments

There have been many advances when it comes to same-sex couple family law over the past few years. Several states, including New York, have opened up marriage to same-sex couples.

While same-sex couples can get married here in New York, this hasn't completely eliminated the phenomenon of same-sex couples in the state sometimes finding themselves on different legal footing than opposite-sex couples would be on when it comes to family law issues. One area where tricky legal issues can arise when it comes to same-sex couples is child custody.

For example, when a same-sex couple has a child prior to getting married and then gets married and later separates, the member of the couple who is not biologically connected to the child may find themselves unable to receive custody rights regarding the child. This is in part rooted in the fact that, under New York law, if a child is born prior to a marriage, only individuals that are the biological parents of the child are presumed to be parents.

In a New York court case this year, a woman who is separated from her same-sex partner was denied the opportunity to seek custody of a child under this principle. The woman and her partner had a child before they got married. The woman's partner is the child's biological mother. After they married, the couple eventually split (though they have not yet divorced) and the woman submitted documents seeking to have a joint custody arrangement established. A court, however, ruled that the woman lacked standing to make a custody request due to the fact that she had no biological link to the child.

Men in opposite-sex couples who have found themselves in a similar situation of trying to seek custody of a child they have no biological connection to sometimes have had success in their efforts. In fact, the judge in the above-mentioned case noted that the result may have been different if the woman was a man. This raises some serious fairness questions regarding the current state of child custody law in New York.

As this illustrates, same-sex partners can still face significant legal difficulties in family law matters here in New York. Thus, having a strong advocate on one's side can be important for a same-sex partner when in a family law dispute. 

Source: The New York Times, “Parenthood Denied by the Law,” John Leland, Sept. 12, 2014