Rights of Parents In LGBTQ+ Relationships

Same-sex couples have had the same rights as traditional couples since a landmark 2015 Supreme Court ruling. In Colorado, LGBTQ+ individuals may marry, adopt children, or form families through other legal means. Like all families, sometimes LGBTQ+ relationships fail, or spouses choose to take separate paths.

Like all spouses in Colorado, LGBTQ+ individuals have the right to a no-fault divorce on the grounds that the marriage is irretrievably broken. And, like all parents, Denver courts make child custody decisions in the child’s best interests without regard to sex, sexual orientation, or biology.

Understanding Allocation of Parenting Time In LGBTQ+ Divorces

Since Obergefell v. Hodges, 576 U.S. 644 (2015), the law treats same-sex couples just as other couples, with the same rights and obligations, including the right to marry, divorce, and raise their children. In Colorado, the courts refer to custody schedules as “allocation of parenting time,” and “legal custody” refers to decision-making authority for the child. Under Colorado’s best interests standard, the court does not consider biology or sex when both spouses are the legal parents of the children. Instead, custody decisions are based on providing children with a stable living environment, a workable parenting-time schedule, and continued close contact with both parents.

Colorado’s courts now use a gender-neutral presumption of parentage when making court decisions on child custody during divorce, but due to the inherent nature of LGBTQ+ parenting, sometimes legal questions arise that require careful handling, with meticulous attention to the language of the law.

Important Considerations for LGBTQ+ Parental Rights

Same-sex parents have the same rights and obligations for parenting as opposite-sex parents, including the right to shared parenting time and the obligation to support their children, including paying court-ordered child support under the state’s income-shares model. However, same-sex partnerships often have the following unique considerations:

• Both parents have the right to seek shared custody if the state recognizes both as legal parents, including when both parents adopted the child, one parent adopted the other’s biological child, or
• The state applies the presumptive parent standard, giving both parties parental status if they were legally married at the time of the child’s birth, such as through surrogacy
• If one parent has not legally adopted the child and was not married to the other parent at the time of the child’s birth, they may still have legal rights if they demonstrate to the court that they had a significant parental relationship with the child

When a non-legal parent has acted as a caregiver to a child, the court may still give them non-biological, non-adoptive parental rights, including the right to shared custody or visitation.

What Does the Court Consider In Determining Shared Parenting In Same-Sex Relationship Custody Disputes?

In the best-case scenario of child custody, both parents can communicate and compromise effectively enough to agree to share custody with a parenting-time schedule that works for them. However, if they take a child custody dispute to court, under the child’s best interest standard, the court considers the following:

• The stability of the home environment in each parent’s home
• The emotional bond between each parent and their child, the child’s daily routine, and whether one parent is the primary caregiver
• Each parent’s willingness to foster the other parent’s continued close relationship with their child
• The child’s wishes and preferences, if they are of an age to reasonably express them
•  Any history of abuse, neglect, or serious addiction

When each parent in an LGBTQ+ divorce or non-married child custody case is a legal parent with an equal right to shared custody, the Colorado court considers continued close contact with both parents as in the child’s best interests unless one parent demonstrates evidence that this isn’t the case.

How Can a Denver, Colorado Child Custody Attorney Help?

Despite the fact that the court treats LGBTQ+ parents just as all parents in court cases, unique considerations often apply in same-sex child custody cases. It’s crucial to hire a Denver divorce attorney with experience in this area and a history of satisfied clients. Call Ciancio Cianicio Brown, P.C. to learn how an attorney represents your family’s best interests throughout the legal process, seeking a low-conflict solution while always prioritizing your goals for your family.