Starting in 2015 same sex marriages are recognized in all 50 states and as a result, divorces are now allowed and dealt with in the same manner as any other divorce; however, certain issues may effect custody rights more predominantly.
As with all divorce proceedings the advice and support of a competent and devoted attorney will aid in the process and, ultimately the final results. The attorneys at Vacanti Shattuck have the experience necessary to guide you through this process. Contact us to speak with a member of our firm.
Same Sex Divorce and Custody
Under the law in Nebraska, a non-biological or non-adoptive parent will generally lack the ability to seek custody or visitation.
However, there is a legal doctrine that may allow you to seek custody or visitation. The doctrine is in loco parentis and it states that a non-biological or non-adoptive parent may be awarded custody or visitation if the non-biological or non-adoptive parent has acted like the biological parent by assuming the obligations and responsibilities of caring for the child.
The ultimate concern is the best interests of the child. The Court will consider the relationship between you and the child and will examine the strength of the bond formed between the both of you. The Court is generally looking for an intimate parental relationship between you and the child, just as if you were the child’s biological parent.
If you are married, an in loco parentis relationship will automatically end when your marriage is dissolved, unless you actively desire to maintain a relationship with the child after the dissolution. For non-biological and non-adoptive parents, the concern is overcoming the parental preference doctrine.
Parental preference is a legal doctrine that provides that a biological or adoptive parent should not lose custody of their child to a non-biological or non-adoptive parent, unless it is affirmatively shown that the parent is unfit or has forfeited their rights to the child.
A biological parent losing their parental rights may be brought about through the indifference of that parent for the child’s welfare over a long period of time.
A non-biological or non-adoptive parent will have to overcome the extremely high presumption that the best interests of the child are served by reuniting the child with his or her biological parent.