Pennsylvania Child Custody: What Problems Arise in a Same-Sex Divorce

Posted by Joseph Lento | May 13, 2022 | 0 Comments

The CDC reports over 630,000 people got divorced or had their marriages annulled in 2020. The CDC data includes same-sex divorces, and although Pennsylvania law governing divorce is applied the same to all marriages, same-sex divorce often creates a unique issue. In matters of child custody, same-sex divorces can be more difficult to navigate when one parent isn't biologically related to, or hasn't formally adopted, the child.

Child Custody Issues that Arise in Same-Sex Divorce

In same-sex divorce, the child or children of the marriage may only be biologically related to one partner. If the parents were married when the child was born, and the child was conceived through IVF or sperm donation, then both parents will be entitled to legal custody. In this situation, the court will treat the child as though it was born to both parents.

Sometimes only one parent has legal custody at the time of divorce. This might occur if a child was adopted only by one parent, or the partners weren't married at the time of conception of the child, and one of the partners is not the biological parent of the child. If you're worried you may encounter an issue of legal custody during your divorce, speak to our Family Law Team at the LLF Law Firm when you have important questions concerning your child custody rights.

What Pennsylvania Law Says About Child Custody in Same-Sex Divorce

Fortunately, the Pennsylvania Child Custody statute provides a way for a non-adoptive/non-biological parent to seek custody of a child. According to Section 5324, certain individuals have standing to file for child custody if they meet specific requirements, including being “[a] person who stands in loco parentis to the child.”

Accordingly, a non-adoptive parent could have standing to pursue custody of a child after a same-sex divorce on the basis of loco parentis. Once standing is proven, the PA courts will decide how to award custody based on the best interest of the child. A variety of factors are taken into consideration in determining what a child's best interest is, including:

  • Parental employment
  • A child's medical or emotional needs
  • Whether a parent has a history of domestic or sexual violence
  • The age of the child
  • The preference of the child if they are older
  • Proximity of each parent to the child's place of education

Divorce is difficult for everyone involved, especially children. Even if dissolution is the best path forward, you'll still need to navigate child custody negotiations with care and diplomacy.

Speak to a PA Family Law Attorney

Our Family Law Team and the LLF Law Firm have many years of experience helping families through the difficult process of divorce and child custody arrangements in Pennsylvania. If you're worried you aren't going to be able to see your child or children after your divorce, call the LLF Law Firm today at 888-535-3686 today.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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The LLF Law Firm has unparalleled experience practicing Family Law in Pennsylvania. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Our Family Law Team will go above and beyond the needs for any client and fight for what is fair.

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