By Attorney Max Stephenson

LGBTQ parents can face some complex issues in child custody cases in Wisconsin. In many cases, these types of situations involve one of two types of disputes. First, as the rights of the LGBTQ community receive more public support, it is increasingly common for an LGBTQ spouse who was in a different-sex marriage to get divorced after acknowledging that he or she is gay, lesbian, bisexual, or transgender. In such cases, where children are involved, the other parent may attempt—whether subtly or outright—to convince the court to consider the sexual orientation or gender identity of the LGBTQ parent negatively when it comes to deciding custody and/or visitation rights. Following a more recent trend, the legal parent may also try to object based on religious beliefs.

Current Laws

Established by the 1993 case of Dinges v. Montgomery, Wisconsin law holds that a court’s disapproval of a parent’s sexual orientation cannot be the basis for denying or limiting custody to a parent, unless there is clear evidence that the relationship or the parent’s actions are directly harming the child. Despite the law, it is prudent for any LGBTQ parent seeking custody of a child to be prepared to present legal arguments, expert testimony, and other proof establishing that his or her relationship is in no way detrimental to the child. In fact, a parent should seek to prove the opposite: that maintaining the relationship through custody is in the best interests of the child.

One Legal Parent

The second situation that often complicates LGBTQ custody cases is when same-sex couples who are raising a child decide to divorce or legally separate, and only one of the spouses is the child’s legal parent. In heterosexual marriages, both parents are automatically assumed to be a child’s legal parent, even in cases of adoption or insemination. While this should be true in 2019 for same-sex parents, it is not always the case.

A number of U.S. Supreme Court judgments have provided rights to formerly non-legal LGBTQ parents, including the landmark 2015 case of Obergefell v. Hodges, which granted the right to marry—and all the rights and responsibilities that come with marriage— to same-sex couples, including recognizing a non-gestational parent as a legal parent. Almost exactly two years later, Pavan v. Smith provided same-sex parents with the right to be included on a child’s birth certificate, and they may be listed as “mother/father” or “parent/parent.” This right applies if a child is adopted by the parents or conceived through artificial means.

While this should seem pretty clear cut, it is unfortunately not always the case, especially when it comes to a child’s birth certificate. A birth certificate is considered an “indication” of a child’s parentage, but it is not concrete legal proof. For this reason, many non-gestational LGBTQ parents opt to legally adopt their child, and become the child’s legal parent. However, this avenue of protecting child custody rights may become increasingly hard for LGBTQ parents based on recent laws restricting LGBTQ adoptions based on religious beliefs. 

Religious Objections to LGBTQ Parentage

In May 2018, two states—Kansas and Oklahoma—passed legislation allowing legal protections to faith-based adoption agencies that cite religious beliefs for not placing children in LGBTQ homes. By the end of 2018, 10 states had passed similar legislation. This is not only making it harder for LGBTQ parents to adopt, but according to experts, it is worsening the current child welfare crisis. Same-sex couples with children are seven times more likely to be raising a foster child and seven times more likely to be raising an adopted child than their different-sex married counterparts. If Wisconsin follows this trend, it could have a tremendous negative impact on LGBTQ parents who previously counted on legal adoption to preserve their parental rights. 

For the above reasons—along with the history of volatility when it comes to laws affecting LGBTQ couples— it is highly recommended that LGTBQ parents file a court order to establish themselves as legal parents and seek experienced legal counsel to protect their parental rights in case of divorce or a legal separation. 

Contact a Milwaukee, WI LGBTQ Family Law Attorney

Gimbel, Reilly, Guerin & Brown, LLP has worked for years to protect the rights of LGBTQ couples. We can help you protect your custody rights by obtaining a court order that recognizes you as your child’s legal parent. Whether you are getting married, adopting a child, or facing divorce, we can help ensure that your rights are protected. Contact our Waukesha County family law firm today at 414-271-1440.


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