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Are there unique child custody issues in same-sex divorces?

On Behalf of | Aug 5, 2022 | Family Law

For divorcing parents, the fate of their children is usually, their ultimate concern. They want the best interests of their child honored, and they want to maintain their relationship with their child. This is true of both opposite-sex and same-sex couples. Unfortunately, there are some quarks associated with child custody in Orlando, Florida, same-sex divorces.

Legal underpinnings

The law underpinning child custody is built on the idea of traditional marriage, biological parentage and adoption by a “mother” and “father.” For this reason, child custody for same-sex couples can have issues that parents in an opposite-sex marriage do not face.


First, the law favors the biological parents over all others. In a same-sex divorce, this can have consequences when only one spouse is a biological parent. That parent may get special treatment, even if the other spouse is the Orlando, Florida, adopted parent.

Mother biases

It is often stated that mothers have an advantage in Orlando, Florida, child custody cases, but over the past few decades, the courts have stopped this practice. However, the perceived mother bias is still, at least, anecdotally, an issue.

This can play out in a lesbian divorce where one mom is the biological mother, who inexplicably receives primary custody. Some judges may be explicit too, citing the additional time that the mother spent with the child in the womb or some other biological reason for the preference.

Surrogacy and adoption

Surrogacy and adoption issues plague all divorces that have children through surrogacy and adoption. However, for same-sex couples, depending on how they designed their surrogacy and adoption, they may face unique challenges.

For example, some same-sex couples mix their reproduction items together or randomly select samples to start the embryo. Some even bring in their family members for biological donations to ensure that the child is related to both parents. Of course, with each step, the legal issues grow.

Solve these problems before divorce

For our Orlando, Florida, readers in same-sex marriages, even if you are not thinking about divorce, solve these problems now. Make sure that adoptions have been finalized to ensure that both parents have legal rights.

Draft a postnuptial agreement to establish child custody and rights now, while you are both still in love. We never know what the future will bring, but we do know that the decisions you both make now for the children may very well be different than during a divorce.