Same-Sex Parents & Custody in Utah

Same-sex couples face many of the same challenges when they choose to divorce that heterosexual couples do. If a couple has children, then custody and child support must be established according to Utah law. Call Fontenot Law, P.C. to talk about your legal case. Same-sex marriage has been legal in Utah for more than a decade, but legal complexities continue to arise. In fact, parents might have difficulty maintaining a relationship with a child once divorced if they have never adopted the child or are not the biological parent. Speak with one of our experienced Woods Cross family law attorneys in a private consultation.

How Child Custody is Different for Same-Sex Couples

One issue that presents great difficulty for same-sex couples is child custody. In Utah, an adult only has parental rights when they are the biological or legal parent of a child. In the typical heterosexual marriage, both spouses are the biological parents of their children, so each parent can seek custody in divorce.

Parental rights are often more complex when it comes to same-sex couples. Typically, one spouse is the biological parent of the children. The other spouse needs to create a legal relationship with the kids, such as by stepparent adoption. Once they adopt, the non-biological parent will have a right to seek custody in divorce.

Unfortunately, sometimes a spouse delays adoption or never considers it a possibility. In other cases, the child’s other biological parent refuses to give up their parental rights. Children can only have two legal parents, so the non-biological spouse might never adopt. The result is the same: when the same-sex couple divorces, the non-biological parent is without rights.

In 2007, the Utah Supreme Court held that when a same-sex couple splits up, only the biological or legal parent has a right to custody. The non-biological and non-legal parent has no right to even visitation. That is a severe result.

Call Fontenot Law. We can offer advice regarding child custody. If you never adopted the children, then you should seek immediate legal advice about your options.

Custody Battles in Divorce

Same-sex couples need to establish custody in divorce. In Utah, custody is divided between legal custody and physical custody. Think of legal custody as the right to make choices for a child, such as granting permission for them to go on a field trip or have a medical procedure. There is a presumption in Utah that joint legal custody is best for the children.

Physical custody refers to physical possession of the child. Parents might enjoy a 50/50 split of physical custody, meaning the children spend half their days with each parent. Or the parents could have a different percentage. Utah law expresses no preference for joint or sole physical custody.

Utah courts decide child custody based on the child’s best interest. (Utah Code § 81-9-204.) This standard that looks at more than a dozen factors, including:

• Evidence of sexual abuse or domestic violence;
• Each parent’s ability to meet the child’s needs;
• Psychological mistreatment;
• Each parent’s ability to coparent and communicate with the other parent;
• Each parent’s emotional stability;
• Each parent’s financial responsibility;
• Who has served as the primary caretaker of the child;
• Financial responsibility of each parent;
• Any drug use; and
• Other factors.

At Fontenot Law, we understand the law and how local judges will likely analyze a case. We can also discuss if you have any problems in your past which must be addressed, such as drug use, domestic violence, or financial irresponsibility. You should take concrete steps to improve your situation.

Handling a Custody Dispute Outside of Court

Parents can also avoid a custody battle by negotiating a custody agreement. Working on their own or with lawyers, parents can hammer out an agreement, including a detailed parenting plan which identifies who the children will spend time with. Each parent then signs the agreement and submits it for court approval.

Reaching an agreement without litigation has many advantages. For one, you can make the divorce less stressful for yourself and your children. Negotiation is also faster, which means you will be able to move forward productively.

When parents negotiate custody, they take ownership of how they will co-parent. By contrast, one or both parents could have lingering resentment if they leave this issue up to a judge. It’s better to start off on the right foot.

Negotiation is not appropriate in all cases. If you fear for your children’s safety, then you should not negotiate. You might seek sole physical and legal custody because the other parent is a danger to the children, or because they have moved in with someone who is dangerous.

Why Choose Our Law Firm for Your Same-Sex Divorce

Fontenot Law can help parents who are seeking divorce. We have handled negotiations for same-sex couples. Many of the issues that arise are the same as for opposite-sex couples:

• Do you want to move after divorce? Some people seek new job opportunities or hope to move in with their family. But leaving Utah or even moving across the state can be tricky.
• Is your work schedule irregular? It can be hard to come up with a parenting plan if you do not know where you will be week to week.
• Financial considerations. These arise when it comes to physical custody. For example, you might want physical custody for the school year, which could mean asking for the family home in your divorce.

Remember that custody will also impact child support determinations. We can discuss the full range of issues that arise when spouses divorce with children.

Speak with Our Utah Family Law Attorneys Today

Attitudes regarding same-sex marriage have shifted enormously over the past 10 years, but Utah’s law has not always kept pace. If you see divorce on the horizon, reach out to our firm to discuss what steps to take. We have represented men and women in divorce for decades. We can advise you about how to strengthen a claim for child custody and protect your relationship with your children. Contact us to schedule a private consultation.