Same-Sex Marriage Breakup Leads to Unusual Custody Battle

New York passed the Marriage Equality Act in 2011, which allowed for the marriage of same-sex couples throughout the state. However, one couple soon found that there were some unusual circumstances surrounding child custody during New York same-sex divorces. Now one woman is left scrambling to figure out how to have access to her adopted child.

When the couple initially separated, one woman (who we’ll refer to as Jane) began seeking joint custody of their two-year old child. However, this past June, a Nassau County judge ruled that Jane did not have legal grounds to seek joint custody, even under the Marriage Equality Act, because she was not the parent of the child.

The judge was forced to acknowledge this inherent inequity in the law, a law that bears the name of equality. He even added that if Jane were a man, she would likely be able to be granted access to the child. However, he could not legally grant Jane joint custody even through the provisions of the Marriage Equality Act, a verdict that devastated her.

The ruling has brought this issue with the Marriage Equality Act to light in the state of new York, as same-sex parents are basically considered strangers to the child in the eyes of the law, even when, in cases such as Jane’s, the person has provided and cared for the child throughout the child’s entire life. It raises some significant questions that the legal community must address — what is the definition of parenthood? Is parenthood restricted to biology? How can the law be appropriately revised to prevent future same-sex couples from undergoing these same struggles?

There is a lot of work to be done on the Marriage Equality Act to make the rights of same-sex couples truly equal, and this recent custody battle is just the latest and largest example of this. For more information about divorce and custody proceedings for same-sex couples, speak with a family law attorney at Bryan L. Salamone & Associates.

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