While same-sex couples have the right to marry, when they separate, same-sex parents are finding that many states' laws have not caught up to the times when it comes to child custody or child visitation rights. Despite the fact that the country supports the rights of same-sex couples to be parents, the legal framework under which child custody and child visitation are decided fails to accommodate the family structure of same-sex parents. This situation is limited to same-sex couples that are separating where one partner either had a child before the marriage, or had a child during marriage, where only one partner is biologically related.
The root of the problem is centered around the concept of biological parentage. Unless a child is adopted by the non-biological same-sex parent, or the non-biological same-sex parent signs the birth certificate (if allowed by the hospital), a court may not recognize that parent as a parent at all, and therefore won't award visitation, let alone custody. The problem with deciding visitation and custody when one of the same-sex parents is not legally considered a parent is that not all courts recognize de facto parents, and a court cannot award visitation or custody under the legal framework of many states to a person who has no rights under the law.
Adoption by the Non-Biological Parent
Frequently, same-sex couples adopt children. When both parents adopt the child at the same time, this is called joint adoption and is available in every state. When same-sex couples jointly adopt, they will both have visitation and custody rights after separating. As part of the adoption process, the biological parents terminate their parental rights and the same-sex couple assumes legal and physical custody of the child.
When same-sex couples go through the birthing process, scientifically, unless there has been a gender re-assignment or the days of Gattaca have arrived, both parents cannot be biologically related. If the parents are married, hospitals will typically allow same-sex couples to both sign the birth certificate, regardless of biology. When this doesn't happen, the non-biological parent needs to go through the legal process of adopting the child and having the biological parent that donated their genetic material (and/or womb), to the same-sex couple, terminate all parental rights.
By going through the adoption process, the non-biological parent, under the law, will be on the same footing as the biological parent. Under the law, adoptive parents have the same legal rights as a regular biological parent would. Unfortunately, in some states, second parent adoption is not allowed.
The Process Is Less Annoying Than Losing Custody
For non-biological parents, speaking up about their legal rights to the biological parent may seem like an awkward or uncomfortable conversation, but it is beyond important for same-sex parents to make sure they have the proper legal rights before any issues can arise. Among the chief concern that should be raised is what happens in case of illness, sudden injury or, worse, death; separation doesn't even need to be mentioned. If the biological parent is killed in a car accident, a court may be powerless but to award custody to the biological parent's grandparents over the non-biological, surviving, same-sex parent.
If you and your same-sex spouse have children that you are not both equally the legal parents of, it is in your and your children's interest to do the paperwork and get the legal process started and finished as soon as possible.