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Can a nonbiological parent gain sole custody in same-sex divorce?

On Behalf of | Aug 16, 2023 | Child Custody

Facing custody battles has never been an easy part of any divorce process. But if this happens within same-sex divorcees, they may find another level of intricacies unfolding.

For example, what if the biological parent assumes the role of a father, but the child’s needs scream for motherly affection, which the nonbiological parent can provide? Is this enough for the court to grant custody to the parent without biological connections to the child?

Legal grounds for seeking custody

Even if one spouse is the biological parent, the law often recognizes both parents’ roles in the child’s life.

In Arkansas, the nonbiological parent may have legal grounds for seeking custody or visitation rights based on their role as a de facto parent. They must have active and substantial involvement in the child’s life, from emotional bonding to caregiving responsibilities.

Documentation such as school records, medical records and affidavits from friends and family can reinforce this role.

The child’s best interest

Still, even if a nonbiological parent can seek custody, it does not automatically mean custody will be awarded to them. As in almost all custody battles, the child’s best interest always matters in the end. Demonstrating that your involvement as a nonbiological parent benefits the child emotionally, mentally and physically strengthens your case.

For same-sex parents, there may be instances where the court may deem it better for the child to stay with the parent assuming the role of the father or the other way around. This is regardless of who is the biological parent. What’s important is that the parent’s gender is not the deciding factor in determining custody. The court’s primary concern is the child’s well-being.