The Second Parent's Fate After a Break-Up

The status of a second parent (the nonlegal, nonbiological parent) is most likely to become an issue if a same-sex couple splits up. When heterosexual parents separate and can't agree on reasonable custody, support, and visitation terms, courts will step in to resolve the troubles. But gay and lesbian couples don't usually have these built-in protections.

In fact, many courts say that a second parent has no rights regarding the child of a partner, even if she or he has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love. At worst, the second parent may be treated by the courts as a stranger, giving the legal parent an absolute right to deny all future contact between his or her ex and the child. Courts in Florida, Illinois, and New York have denied ex-partners visitation without taking into account any aspect of their relationship with the children they helped raise.

A handful of courts take the opposite view, awarding visitation to a nonlegal parent after finding him or her to be such a critical part of the child's life that it would be wrong not to grant at least some rights to stay connected with the child. These courts may call the second parents "de facto parents" or "psychological parents," meaning that they have lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal or biological one.

In addition to looking at the reality of the parent-child relationship in these situations, courts may consider the following factors in the relationship between the child and the nonlegal parent:

• the length of the relationship between the adults, and whether they and the child lived together
• the intentions of both partners to parent together and what steps, if any, were taken to ensure that joint parenting would take place, and
• any co-parenting agreements or other documents regarding the child that had both partners listed as parents, such as birth announcements.