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Is it possible to get custody after a same-sex divorce?

With same-sex marriage now legal across the United States, LGBT parents are finding that divorcing can create some unique issues. One of the main areas is the problem of who gets custody of the children when the couple divorces because both are not biological parents of the child.

LGBT couples use a variety of avenues to have children, ranging from adoption to a sperm or egg donor and in vitro fertilization. While it's not something the parties are usually thinking about at the time, which method the couple uses can have a serious impact on the custody case later on.

If the child is formally adopted by both parties and both are given legal parental rights, the custody case will usually continue as any other. However, in the latter case when one party is the biological parent of the child and the other is not, it can be much more complicated.

In these situations, it can be very difficult for the other party to get visitation rights at all, let alone a joint custody arrangement. This is because the courts still have not caught up to the changes in the last decade or so, and same-sex partners are not automatically given equal parental rights in some cases.

Ideally, couples should consult with a family law attorney before starting their families so that they are fully informed on what the implications will be for custody and visitation should things not work out. However, if you are already in the process of divorce and concerned about your legal rights, discussing your particular situation with a Miami lawyer is the best first step.

Source: National Center for Lesbian Rights, "Child Custody and Visitation Issues for Lesbian, Gay, Bisexual, and Transgender Parents in Florida," accessed March 14, 2016

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