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Child Custody for Same-Sex Divorce

By February 2, 2020April 30th, 2021One Comment

When same-sex marriages end, and there are children involved, deciding how to handle child custody can be challenging. The rules for child custody and visitation differ from state to state, but these matters can be particularly complex for same-sex parents in Washington.

Best Interests of the Child

Now that marriage equality is the law of the land, same-sex couples will be treated equally in a divorce. Most states, Washington included, consider the best interests of the child when drafting or approving a Parenting Plan.

Instead of using legal jargon like “sole custody,” “joint custody,” or “visitation,” Washington’s family law courts prefer to stick to how much residential time a child has with each parent. The factors that the courts consider are things like stability, safety, and the nature of a parent’s relationship with the child. When it comes to same-sex divorce, this determination can get complicated.

Who is the Legal Parent?

When both parents are considered “legal parents,” child custody in a same-sex divorce is just like any other divorce. Washington State allows parents to establish parentage in two primary ways:

Biological Parent/Co-Parent Adoption

The biological parent of a child is automatically a legal parent. When the other parent adopts the child, they are also considered a legal parent and have equal rights.


When same-sex parents jointly adopt a child, they are both considered legal parents and have equal parental rights.

Other Ways to Establish Parentage

Before same-sex marriage became legal in Washington in 2012, RCW 26.26.116 provides for two additional ways to establish parentage.

Presumption of Parentage

The presumption of the legislation is that both partners are considered the legal parents of any children born during the marriage. It doesn’t matter whether or not one spouse is a biological parent; both will have equal parental rights in a divorce.

Parent-Child Relationship

The state will assume that a partner in the marriage is a legal parent if they lived with and raised the child as their own for the first two years of the child’s life. In short, playing the role of a parent during this period gives that partner legal status as a parent.

Legal Advocacy for Child Custody in Same-Sex Divorce

If you are getting a same-sex divorce in Washington State and there are children involved, you could face some complex legal issues. At AB Law, we put our knowledge and years of experience to work for you as we fight to protect your parental rights. Contact our office today to schedule a free consultation to discuss your options.

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