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How Does Divorce and Custody Work for a Same Sex Marriage

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  • 07-17-2017, 05:06 PM
    sftbllkd
    How Does Divorce and Custody Work for a Same Sex Marriage
    My question involves adoption law for the State of: Ohio

    My partner and I were married before having children. My partner is the biological mother to both children. We were married in '09 in Canada and have lived in Ohio the entire time. Children were born in '10 and '12.

    What needs to be done to file for divorce, if it comes to that? Do we have to file in Canada and Ohio?

    What are my rights to my kids? What do I need to do to protect/gain rights to my kids in the case of a divorce?

    Thank you.
  • 07-17-2017, 05:59 PM
    LegalWriter
    Re: Lgbt Marriage/Divorce and Children
    As far as divorce goes, you're a resident of Ohio and that is where the divorce should be filed. The kids will be more complicated and you should consult an attorney that is knowledgeable on these issues. LGBT divorce law is still developing and your state is not in the forefront. For a hetero couple, a child born during the marriage is considered a child of the marriage. Whether that same rule applies in a same-sex marriage or whether you have to legally adopt the kids, I can't tell you. Please consult an attorney.
  • 07-18-2017, 08:04 AM
    Mr. Knowitall
    Re: How Does Divorce and Custody Work for a Same Sex Marriage
    In terms of the divorce and custody case, Ohio's courts will treat it like any other case. As with any case, if you and your partner are both on the children's birth certificates as parents, then you can seek custody or visitation rights. If not, then your partner is the only legal parent and, under the facts, it would be difficult at best to try to establish custody rights; if you're not on the birth certificate, you should consult a lawyer. Even with the children being born during the marriage, given the foreign marriage and the later date upon which Ohio started to recognize same sex marriages, you should speak with a family lawyer if you are not already on the birth certificate by virtue of marriage or adoption.

    Apparently your only contact with Canada is that you traveled to Canada to marry; that being the case, your divorce and custody case should be filed in Ohio.
  • 07-21-2017, 08:12 AM
    Tonsofquestions
    Re: How Does Divorce and Custody Work for a Same Sex Marriage
    Divorce and custody should be filed in Ohio.

    Same-sex marriages are recognized in Ohio currently, which means everything will be treated the same as a heterosexual marriage. Doesn't matter that you are not the biological parent of the child, if a child is born during a marriage both of you are recognized as the legal parents of the child unless paternity is established by the biological father. Doesn't matter that your marriage and birth of children were before Ohio started recognizing same-sex marriages, you and your rights are still protected now. They cannot say, "Oh, since you got married before and had children before your rights are not protected now". You can formally have your name added to the birth certificate as well, for both you and your children to see. Just because you're not on the birth certificate doesn't mean you have no rights now, children were born while you were married, you have rights. If the biological father requests paternity to be established, that's where the difficulty arises.
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