Custody For LGBT Families

Just as with divorce, same-sex couples exercise the same rights when it comes to child custody in British Columbia. The technical terms encapsulate this more inclusive understanding — instead of custody and visitation, provincial law details the requirements for shared guardianship and parenting responsibility when parents split up.

If you have questions about your custody rights, we at Westside Family Law are happy to answer them and help you in any way we can.

Unique Considerations Within LGBT Families

Many same-sex couples use adoption or assisted reproductive techniques like in-vitro fertilization or surrogacy to achieve their goals of starting a family. Mishandling these processes from a legal standpoint can create complicated custody battles should the couple later separate or divorce.

The following provides general information about issues that can come up in these situations:

When Couples Use Assisted Reproductive Techniques

If a couple uses assisted reproduction, a birth mother's same-sex partner may claim guardianship if the two are married or in a marriage-like relationship at the time of the birth. Additionally, an egg or sperm donor will normally not be considered a parent unless he or she has a written agreement with the intended parents before conception to that effect.

What does this mean for separation or divorce? Simply that same-sex partners will be considered full parents like any family if they separate or divorce. Furthermore, a donor cannot assert parenting responsibility over children already born to same-sex couples without a prior agreement.

Concerning Surrogacy

If couples use a surrogate, all three parties must have a written agreement indicating their intentions. Typically, the surrogate will give up her parental rights upon the birth of the child, though all three may agree to share parenting responsibilities jointly. After the birth, a surrogate must again give written consent indicating she is giving the child to the intended parents to confirm the initial agreement.

Should disputes arise — either between the parents and surrogate or the parents themselves — new agreements may be necessary to establish guardianship. The Court will generally consider the initial agreement as evidence of what was intended by all parties, though it may not necessarily enforce the terms of that agreement.

Stepparent Adoption And Third-Party Adoption

In many cases, same-sex partners adopt their spouse's children from a former marriage through stepparent adoption, giving them full parenting responsibility. Similarly, couples may use third-party adoption to start their families.

When parents split up, adoption agreements remain enforceable unless modified by the couple's parenting agreement. Therefore, if you have adopted children, we can help you sort through the complexities and arrive at an agreement that meets your family's needs.

We Will Help You Find The Right Solution For Your Family

The law has the same expectations and requirements for parents regardless of sexual orientation. This means the Court will seek to protect the children's best interests above all other considerations.

We will, too. To discuss your custody concerns with our lawyers, call our office in downtown Vancouver at 604-800-8853. You may also send us an email to set up a free consultation.