For both same-sex and opposite-sex couples, separation or divorce as parents can be incredibly overwhelming. Both parents want what is beneficial for their children, but those ideas do not always mesh. For LGBT couples, there are additional complications when navigating child custody determinations, as parental presumption may not apply the same way. It can be helpful to work with a St. Louis child custody attorney to handle these challenges more effectively.
Parental Presumption in the U.S.
Parental presumption laws in the country play a big role in determining child custody and parental rights. In same-sex couples, parental presumption is the assumption that any child born to a married couple is the biological and legal child of that couple unless steps are taken to disprove this.
Despite LGBT marriage being legal, the marital parental presumption does not always apply to children of LGBT marriages across the country, particularly for children of LGBT couples prior to the legalization of gay marriage. LGBT couples often adopt children or have children who are the biological children of only one parent, which can create complications.
If couples do not take steps to establish paternity, a non-biological parent or parent who did not legally adopt a child may have no legal parental rights to their child during a divorce.
Missouri Laws on Parental Presumption
Since 2021 in Missouri, parental presumption laws have been gender-neutral and apply to same-sex and opposite-sex couples that are married, regardless of how a child was conceived. Conception of a child includes egg donors, sperm donors, artificial insemination, surrogacy, in vitro fertilization, and embryo donors. Any child born to married parents, regardless of the parent’s gender, is considered the legal child of that couple. Both spouses have the right to pursue child custody.
Parents can also create a written agreement, a declaration of paternity, or a decree of adoption to make parental rights more clear.
Unmarried LGBT Couples and Custody Rights
Like opposite-sex couples, LGBT couples must establish paternity for a child if the couple is not married. Couples can put their names on their child’s birth certificate, but this does not provide the parent who did not give birth to the child with parental rights. In Missouri, one effective way for LGBT couples to obtain equal parental rights is to file for a decree of adoption from the court. A decree of adoption gives parents:
- Legal and established paternal rights
- Court recognition of each parent as the child’s parent with custody rights
- Recognition of those rights in other states
Once there is a decree of adoption, parents can also request both parent’s names on the birth certificate.
Without a decree of adoption, the court will likely only recognize the rights of the biological parent in a custody case. These situations could be resolved through an agreement when unmarried parents separate. An experienced attorney can help parents negotiate parental rights and determine the ideal way that each parent is able to raise and spend time with their children.
Unfortunately, it does happen that a biological parent will bring the separation and custody case to court, with the knowledge that they will have a better chance of gaining custody. By creating a decree of adoption, each parent has equal rights to their children, and this can prevent this situation. If you are already facing an incredibly unfair scenario where the birth parent is bringing a custody case to court, you need a qualified attorney to navigate this and defend your interests.
Q: What Do Judges Look for in Child Custody Cases in Missouri?
A: Missouri law states that it is assumed that joint custody shared by both parents is in the child’s interests, and the court will review all relevant factors to ensure that a different arrangement does not better serve the child’s interests. The courts will consider relevant factors such as:
- Each parent’s ability to care for the basic needs of a child, including a safe environment, food, shelter, and clothing
- The child’s relationships with their parents, siblings, school, and community
- If each parent is likely to encourage their child to form a meaningful relationship with the other parent
- Whether either parent wants to relocate to where the child lives
- The child’s needs and wishes
- The wishes of each parent
- The age and health of the child
- The mental and physical health of each parent
Q: What Makes a Parent Unfit in Missouri?
A: An unfit parent is a legal term for a parent who should not be given custody of their child due to actions that endanger their child or place them in harm’s way. The court considers a child’s interests when assigning custody and will alter the presumption of shared custody being in a child’s interests when a child suffers emotional, mental, or physical harm because of their parent.
A parent may be considered unfit due to untreated and continued substance abuse, domestic violence, parental neglect, or cohabitation with a dangerous person.
Q: What Are the New Missouri Child Custody Laws for 2023?
A: Missouri family law judges have tended to favor joint custody arrangements as being in the child’s interests, and laws as of mid-2023 have codified that preference. The court now assumes that equal and joint parenting time is in the child’s interests, as it allows the child to spend meaningful and frequent time with both parents.
The law now requires courts to consider all the evidence to determine if joint custody is not in the child’s interests and then consider other custody arrangements if there is a preponderance of evidence.
Q: At What Age Can a Child Choose What Parent to Live with in Missouri?
A: In Missouri, a child can only legally refuse to live with a parent or choose who they live with when they are 18 and no longer legally a child. Before a child turns 18, they can express their preference in court determinations for custody. Typically, the court will consider the wishes of a child over the age of 12.
A child’s wishes are one factor the court considers when deciding custody, but the child’s interests are always the priority. If a child’s wishes counter their interests, the court will not listen to their interests.
Protect Your Family’s Interests in Divorce
The experienced team at Stange Law Firm in St. Louis wants to help protect your rights as an LGBT parent. We know that the legal system can be more difficult to traverse as a same-sex couple, and we want to provide you with our knowledge and guidance. Contact us today.