Child Custody FAQs for LGBTQ+ Couples

The makeup of the modern family is evolving in Colorado as it is elsewhere in the United States, but where there is legal marriage, there is also a need for clearly defined legal parameters for divorce, including for matters of child custody. Colorado places the well-being of children as the state’s highest priority in all family court decisions, including for LGBTQ+ spouses. While there is no difference in the divorce process for same-sex spouses and opposite-sex spouses, when it comes to deciding on matters of child custody, navigating the state’s divorce laws becomes more complex due to a higher prevalence of non-biological parents and children from assisted reproductive technology.

If you’re a member of the LGBTQ+ community and you’re facing a divorce, you may have valid questions about how the Colorado courts make decisions in child-custody matters for today’s non-traditional families.

Do Same-Sex Parents Have a Right to Shared Custody After a Divorce?

Colorado considers close, frequent contact with both parents as best for the children after a divorce. Same-sex parents have the same legal rights to shared custody after a divorce as opposite-sex parents assuming that both spouses are the child’s legal parents. Same-sex parents may be a child’s legal parents under the following common circumstances:

• When a child is born to a couple during a same-sex marriage with or without reproductive-assistive technology via surrogacy, sperm donation, etc
• When a non-biological parent establishes legal parenthood to a spouse’s biological child through second-parent adoption or stepparent adoption

Under either of the above circumstances, the courts in Colorado divorce cases decide matters of child custody in the best interests of the child with the goal of supporting frequent continued contact with both parents through one of several workable shared parenting schedules.

If I’m Not a Legal Parent to My Spouse’s Biological Child Can I Get Shared Custody?

Colorado laws for child custody are still evolving with the changing definition of traditional marriage and parenting roles, but currently, if a same-sex spouse did not take steps to legalize the parenting relationship, and the child’s biological parent does not agree to shared parenting time, the non-biological parent must bring forward a maternity or paternity action to argue that they are a presumed parent to the child or children under C.R.S. §19-4-105 (1)(d). With skilled legal representation, a same-sex spouse may establish their parental rights under the law of parental presumption.

How Can I Protect My Status as a Parent During a Colorado Divorce?

LGBTQ+ spouses should protect their status as a parent to non-biological children by obtaining legal rights and responsibilities to the child and keeping documents proving their parental status such as:

• Birth certificate
• Adoption decree, including second-parent or stepparent adoption
• Declaration of paternity
• Co-parenting agreement
• Decree affirming parental status to a child
• Guardianship Agreement

What is a “Presumptive Parent” in Colorado?

Traditionally, parental presumption is the legal assumption that the spouse of a woman who gives birth is the child’s other legal parent. Colorado courts now apply this presumptive right to same-sex parents. Because the parental presumption rule holds that “a man is presumed to be the child’s natural father” if he takes the child into his home after birth and “holds the child out to be his natural child” and if he and the mother are married at the time of the child’s birth or within 300 days after the termination of the marriage or “if the child is the result of assistive reproductive technology.”

Despite the gender-specific language used in the not-yet-updated parental presumption law, courts in Colorado have held that the law also applies to same-sex couples. A non-biological parent may gain parental rights and responsibility for a child born during a same-sex marriage under the parental presumption law.

How Can a Family Lawyer With Experience in LGBTQ+ Divorce and Child Custody Help?

Despite the evolving laws in Colorado, same-sex spouses may encounter unique challenges in matters of deciding child custody and shared parenting time. Navigating these evolving laws requires an experienced attorney to defend parental rights and responsibilities in LGBTQ+ divorce.