New Jersey has made significant strides towards equality for same-sex couples in the realm of marriage and family law over the last decade or so, since New Jersey recognized same sex marriage on October 21, 2013. This landmark decision, Garden State Equality v. Dow, ensured that same-sex couples could enjoy the benefits and protections afforded by marriage under state law. Despite progress, navigating the legal landscape of same-sex marriage and custody can still present unique challenges. Understanding your rights and responsibilities as a same-sex spouse, partner or parent is essential to making sure your rights are protected.
A same-sex married couple in New Jersey is entitled to the same rights and protections as any other married couple. These rights include:
- Spousal benefits, such as health insurance, retirement benefits, and inheritance rights.
- Joint tax filing and other financial benefits.
- Legal recognition of parental rights, including custody and visitation.
If a child is born to a married same-sex couple where only one party is biologically related to the child, regardless of biological and/or gestational parentage, then custody and parenting time will be exactly the same as if the parties were both genetically related to both parties as might occur in a heterosexual parentage situation. When it comes to custody matters, New Jersey law prioritizes the best interests of the child, regardless of the parents’ relationship status, gender or sexual orientation. This means that custody decisions are made based on factors such as the child’s relationship with each parent, the parents’ ability to provide a stable environment, and other factors outlined in a statute.
For same-sex couples, establishing parental rights can sometimes be more complex if they are not married, and particularly if one parent is not the biological or adoptive parent of the child. However, New Jersey law recognizes the importance of both legal and de facto parentage, in which case the party who is not related to the child would be referred to as a “psychological parent.” This means that even if a person is not the biological or adoptive parent, they may still have legal rights and responsibilities if they have acted as a parent to the child. A psychological parent can also be someone other than a same-sex partner (but that’s another blog post!).
It’s important for unmarried same-sex couples to take proactive steps to protect their parental rights, such as:
- Second-parent adoption: If one parent is the biological or adoptive parent of the child, the other parent can petition the court for second-parent adoption to establish legal parentage;
- Co-parenting agreements: Same-sex couples can create co-parenting agreements to outline their intentions regarding custody, visitation, and other parental responsibilities; or
- Establishing parentage: For couples who use assisted reproductive technologies to conceive, it’s essential to establish parentage through legal means to ensure both parents’ rights are protected.
The experienced attorneys at Martine, Katz Scanlon & Schimmel can help you gain an understanding of your rights and advise you on how to protect them to ensure that your rights are recognized and protected under New Jersey law, ideally before a question arises.