Couples seeking a same-sex divorce have the same rights as heterosexual couples in a divorce action. However, some South Carolina laws have not entirely caught up with the unique issues some same-sex couples face as they go through the divorce process.

For example, a factor judges consider when dividing marital assets is the duration of the marriage and whether property acquired before the marriage remains separate property. For an LGBT couple who has been together for decades before same-sex marriage became legal, it can be challenging to determine how to divide their assets equitably.

Child custody is a more complicated issue many same-sex couples face as they navigate divorce in South Carolina. Parents who hire a Rock Hill child custody attorney have a better chance of successfully navigating the process, thereby protecting their child’s best interests and parental rights.

Child Custody Challenges for Same-Sex Couples in South Carolina

Child custody is the right to have physical care of your child and make important decisions for them (physical and legal custody). 

Unfortunately, during a same-sex divorce, custody issues are more complicated when a non-biological parent has not legally adopted the child. The non-biological parent would not have legal parenting obligations or rights. If the child was conceived through assisted reproductive technology, the issue could become more complex if the other biological parent retained custody rights.

Same-sex couples can take steps to avoid these issues from arising during a divorce. If married, the non-biological parent can petition the court for a step-parent adoption. If the couple is unmarried, the non-biological parent could petition the court for adoption by a second parent.

If a same-sex parent is not the legal parent of the child, they can petition the court for visitation. The court would consider the child’s best interests. However, visitation would not give a person without legal status as a parent the right to make decisions for the child. Only legal parents and court-appointed guardians have that right.

Additional factors and circumstances unique to the family could raise other issues regarding child custody in a same-sex divorce. If you contemplate leaving your same-sex partner, it is always in your best interest to seek legal advice as soon as possible, especially if children are involved.

How Do South Carolina Courts Decide Child Custody in a Same-Sex Divorce?

Presuming that both partners are the child’s legal parents, the courts would decide child custody in the same way it does in cases involving heterosexual partners. South Carolina courts decide custody based on the child’s best interest. 

The code states several factors that the court must consider when determining what is in a child’s best interests, including:

  • A person’s desire and ability to parent the child
  • A history of or current allegations of child abuse or domestic violence
  • Each parent’s mental and physical health
  • The reasonable preferences of a child, depending on their age and maturity
  • The roles each parent has played in raising the child to date
  • A child’s ties to their school, community, and extended family
  • The desire to keep the child in a stable, safe home to provide continuity
  • Each party’s ability, willingness, and efforts to foster a continuing parent-child relationship between the child and the other parent

A judge may consider any factor they deem relevant to determining a child’s best interest in a custody matter. Therefore, allegations of parental alienation, unfitness, and substance abuse could be introduced in a child custody case. While judges often prefer joint custody to allow for ample contact with both parents, sole custody is an option if the judge determines it is not in a child’s best interest for a parent to have custody.

What Can I Do to Win Child Custody in a Same-Sex Divorce?

If you and your partner are the child’s legal parents, you must prove to the court that it would be in the best interest of your child for you to have sole custody. It can be difficult to prove that restricting a child’s access to their other parent is in their best interest unless you show that the other parent is unfit or a danger to the child.

A judge may refer parents to a mediator to negotiate a parenting plan if they disagree regarding custody and visitation. A child custody lawyer in Rock Hill can review your situation and explain your legal options based on your specific circumstances.