Breaking up is hard for everyone, but especially for same-sex couples. In a same-sex divorce the partners do not have the same support from families and friends that heterosexuals do. They are not welcome in the legal system of many states. This presents a complex issue when deciding the partners’ child custody and visitation rights.
Because same-sex marriages are not legal in all states, in those states that it is not, gay and lesbian couples cannot dissolve their relationships in the family courts. This leaves them only one option: the general civil court. In the general civil court, same-sex couples will have to handle their affairs before judges not trained in family matters, but in contracts and business law. This is the way their relationship will be treated, as the dissolution of a partnership. How will this affect the children involved?
Child custody and visitation issues cannot be brought up before a general civil law court. You cannot bring up issues as sweat equity or implied marriage before a civil court. Children cannot be divided as property. Unless there is a pre-agreement between the partners on the issues of custody and visitation, gay and lesbian couples are left to their own devices, as divorce court is not applicable in all states. If the parties cannot reach an amicable arrangement regarding how they will relate to their children after separating, they will have to use an alternative dispute resolution method, such as mediation.
This is the legal limbo in which gay and lesbian couples often find themselves. In the majority of the states, same-sex divorces are being handled on a case-by-case basis. In other words, the judges will decide what is best for each particular case. This presents another dilemma. The ample discretion left to the judges may lead to unfair decisions and the possibility of many conflicting results among the different states.
Children of same-sex couples are more emotionally affected by a divorce than those of heterosexual couples. This is due to the conflict created among partners due to the lack of guidelines to solve custody and visitation issues regarding their particular situation. Children of gay and lesbian couples had already gone through a process of adaptation when having to deal with a society that does not accept two parents of the same sex. Their schoolmates and neighbors might have already accepted that fact. Now they will have to start in a new school and or neighborhood. Custody and visitation disputes are a tremendous emotional stressor for all children. Children of same-safe parents are particularly vulnerable.