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The LGBT Biological Child Dilemma

3 min read

By Allison Scollar
Apr 27, 2020

When creating a family as a gay couple, there are obvious challenges.

We cannot make a baby the old-fashioned way. One of the parents can be biologically connected, but not both, by definition of the nature of a same-sex relationship. So what happens in divorce?

It is common for the biological parent to think he/she has priority. This is actually the dilemma. Marriage equality did not erase the cultural and legal issues surrounding the family dynamic of same-sex parents.

If both parents were a part of the child’s life, and both participated in his/her upbringing, then why should either have priority? The truth is, the non-biological parent walks into the courtroom with one strike. From there, it's certainly an uphill battle.

It's important to consider this before deciding to start a family; and, thought awkward, imperative to have a discussion upfront regarding what you both might want in the unlikely event of a separation or divorce. Be sure to have your rights legally assured in writing before embarking on such a venture.

LGBT won the right to marriage, but divorces remain complicated undertakings—and the laws and courts have not yet adjusted to this new family reality.

Gay families are everywhere; and just like our hetero counterparts, we are getting divorces, having custody battles, and suffering in the family court system.

Given my experience with the court, my recommendation is to do anything you can to stay out of them. In the end, I was awarded custody of my daughter, despite the fact that I am not the biological parent—but it was quite a battle, with many strings attached.

In my case, the biological mother and father (who gave up his rights and obligations to my daughter so I could adopt) argued biology. I had only one leg to stand on because I went through the long, drawn-out, invasive experience of the "second parent" adoption process allowed in New York. The custody battle was a brutal ordeal, and one that sadly continues.

If I had not adopted my daughter, there was a very real chance I would never have seen her again.

 

I love my daughter with all my heart. I know the best thing is for her to have both of us in her life. Even though I tried to settle with my ex numerous times, she assumed she would be granted custody due to being the biological parent.

It’s a testament to my dedication to my daughter that I persevered. Everything was thrown at me. Don’t get me wrong. I believe nature and nurture are both very important to raising a child; however, not one at the expense of the other. I believe that we should both have been treated equally, but the courts in New York only have jurisdiction to grant one parent legal custody.

My ex rolled the proverbial dice and lost. She lost because of the specific facts of my case, but the court treated me—as the non-biological parent—as a second-class citizen. 

 

Being a parent is the most rewarding part of my life. Comparably, making the baby is the easy part; raising children is the hard work. Dealing with family court, its biases, and its ancient ways of defining families and what "roles" parents play is archaic, to say the least.

The mantra of the court is “what is in the best interest of the child.” In reality, however, the court doesn’t spend much time on the child’s interest; rather, it's all about the rights of the parents fighting. If the biological connection is the main consideration for child custody in the face of divorce, then being part of a family is very risky for the non-biological partner.

The family court views parties fighting over custody through an old-fashioned lens of "family." There is the parent who provides—usually the father—and the parent who is the caretaker, typically the mother. However, that family definition proving more atypical these days, as we have households with two moms, two dads, single parents, stay-at-home dads, both parents working, etc.  

 

Due to these old biases and the newness of the issues raised by single-sex relationships, the cost of my custody battle was astronomical. And I am not alone.

Carolyn Satenberg, a New York-based family law attorney who has worked with many couples in this situation, estimates that same-sex couples usually pay twice as much for divorces as their heterosexual counterparts—triple the price if children are involved. The lawyers are the winners here. And the system encourages the perpetuation of the fight.

If you are experiencing marital difficulties, please visit ProConnect to speak with one of our experts. To learn more about our Community, visit www.DivorceForce.com.
Written by Allison Scollar

Allison Scollar is a real estate broker with Keller Williams in Tribeca, New York. Her custody battle broke ground in that it highlighted the court's antiquated approach in dealing with same-sex divorce and non-biological child custody.

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