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Special issues that can arise when an LGBTQ couple gets divorced

On Behalf of | Dec 24, 2021 | Divorce |

Divorce is rarely simple, but things can be especially complex when the couple has children together. This is true whether the parents are of different genders or of the same sex. But LGBTQ parents in Butler County can face unique challenges during divorce.

That is because while same-sex marriage (and, consequently, same-sex divorce) is now legal in Ohio, the language in the state’s child custody statutes has not kept up with the times.

‘Husband’ and ‘wife,’ not ‘spouse’

Specifically, the laws dealing with custody and parentage refer to “husbands,” “wives,” “mothers” and “fathers.” By implication, these laws do not consider families where both parents are wives and mothers or husbands and fathers. Practically speaking, Ohio divorce courts should recognize that these laws can be applied without regard to gender, but they have not addressed the issue yet.

One parent or two?

Another common issue for divorcing LGBTQ parents is the fact that, often, only one spouse is the children’s biological parent. Though the nonbiological parent has helped raise and care for the children just like the biological parent, establishing parental rights during divorce can be complicated, because they are technically the children’s stepparent. It is not yet certain if Ohio law recognizes the marital presumption for same-sex couples — the traditional assumption is that when a married woman gives birth, her husband is the father.

For this reason, many married nonbiological LGBTQ parents choose to adopt their children legally. Adoption legally establishes you as your children’s parent and guarantees your parental rights during the divorce process, absent reasons to terminate those rights, such as mental incapacity or abuse. An alternative to adoption is a parentage action, which asks the Juvenile Court to modify the child’s birth certificate to add the nonbiological parent’s name.

While these matters can complicate your divorce, it is still possible to work through them and emerge with a divorce order that respects both parents’ rights and the children’s best interests.

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