Same-Sex Couples Face Unique Child Custody Issues

Marriage equality has brought happiness to countless same-sex Colorado couples, many of whom may have children. But when the happiness ends and the couple splits, child custody issues can become exceedingly complicated and not just for married couples.

Oftentimes, one of the same-sex parents is not biologically related to the child and therefore their rights to custody are not always immediately apparent. This can be devastating, especially to a parent who has participated in the child's upbringing since birth but is told they have no claim to custody upon splitting with their partner because they do not share a biological connection.

According to, both spouses in a marriage are considered the parents of a child who is born or adopted during the marriage. However, if the child is conceived using a surrogate or sperm donor, the non-biological parent may have no legal standing to custody in the absence of formal adoption. This can also apply if one of the spouses had the child before the couple was married.

While the federal government has barred states from banning same-sex marriages, how the resulting family law and child custody battles will play out will likely be decided by each state individually, either through the court system or the legislature. The Huffington Post reported on a recent Oklahoma Supreme Court ruling, which said that a non-biological parent is not considered a "third party" and is entitled to custodial rights. It remains to be seen whether Colorado courts and those in other states will take the same position.

Tags: Child Custody

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