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 Attorney Joseph D. Lento and the experienced team at the Lento 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
Attorney Joseph D. Lento and the Lento 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 Lento Law Firm today at 888-535-3686 today.
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