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Since the United States Supreme Court issued its opinion in Obergefell v. Hodges, the marriage and divorce process for same sex couples is essentially the same as that for heterosexual couples. The major difference that same sex couples face, in the event of divorce, is the issue of child custody because the current system is set up to address the custody of two legal or biological parents. Heterosexual couples enjoy the presumption that a child born into the marriage is a product of that marriage. Such a presumption is not extended to same-sex couples. Therefore, a divorcing same sex couple may run into an issue when one party, who is not biologically related to the children, seeks to maintain visitation or joint custody.
In 2019, the Georgia Legislature enacted, what is commonly referred to as, the Equitable Caregiver Act, codified at O.C.G.A. § 19-7-3.1. This statute fills a gap for same sex couples by allowing the non-biological parent to seek parental rights of a child where that party has assumed a parental role but has not legally adopted the child. The party seeking to be deemed an Equitable Caregiver under the Act, must show that they have:
(1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life;
(2) Engaged in consistent caretaking of the child;
(3) Established a bonded and dependent relationship with the child, which was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted or behaved as though the person seeking Equitable Caregiver rights is a parent of the child; and
(4) Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation.
Ultimately, same sex couples who wish to start a family will benefit from speaking to a family law attorney prior to the birth of the child to ensure both parties acquire legal parental rights. This will ensure the best interest of the child is addressed no matter what circumstances may arise later in the marriage.
We are committed to helping all families navigate this complicated process. Contact Harris Divorce & Family Law to schedule a consultation.
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