LGBTQ
Compassionate and Experienced LGBTQ Law Attorney Advocating for Your Rights
Table of Contents
FAQs
Frequently Asked Questions About LGBTQ+ Legal Issues
My wife and I married and during our marriage we had one child whom my wife birthed using a sperm donor from a cryobank. How are custody and visitation rights determined in this scenario?
Because the child is born of the marriage, the child is deemed a child of both parents. However, unless proven to be unfit, the birth mother is typically deemed the custodial parent of the child with visitation privileges to the other parent. However, if the nonbirth parent adopts the child, this places both parents on equal footing which means the court must decide which parent should have primary placement of the child. This is a complicated question and the facts and circumstances can sway what happens in your particular matter.
I am in a same sex relationship but we never married. I have been around my partner’s child for years and have helped raise his child. Do I have any rights?
Under SC law, yes, you may have the ability to assert your rights as a parent by asking a court to find that you are a psychological parent to the child. This means that while you may not be the biological or adoptive parent of the child, you have been present, supported, and have helped to raise the child as if your own. This would require a court determination.
I am not married and my partner and I have a jointly titled home and other assets together. How do we successfully divide these assets?
In this situation, because you are not married, the Family Court has no jurisdiction to divide your assets. If you cannot come to a written agreement on how to divide your assets, you will be required to file a partition action in Circuit Court to potentially divide your co-owned assets, or other claims in the Circuit Court to address division of your assets.
What Is LGBTQ Law?
We assist same sex couples with matters concerning divorce, asset division, financial support, and custody and visitation of children.
If not married and there are children of the relationship, we assist same sex couples with obtaining joint legal custody, Guardianship Orders, or adoption decrees for your children. A joint legal custody Order means that each parent has equal legal rights to the minor children even though one parent may be the biological parent of the children.
A Guardianship Order creates a limited legal right to a child if the parent is not the biological parent of the child. These orders are also usually limited in scope and time, i.e., for a school year or a fixed time period. We also assist same sex couples in adopting children born of the marriage or prior to the marriage.
Because same sex couples can marry, they are subject to the same divorce laws as other couples, meaning cases can involve contested divorce, custody, support, and property division.
Legal Challenges the LGBTQ+ Community May Face
Many same sex couples have opted not to marry and instead maintain long term cohabitating relationships. Because they are not married, these couples cannot access the Family Court to address division of assets and alimony issues should there be a demise of the relationship. However, if there are children of the marriage, the Family Court can address custody, visitation, and child support rights for each parent.
Because the Family Court has no authority over property of unwed parties, all financial matters including division of assets, may be addressed by a Master in Equity, which is in our Circuit Court. Equitable principles of the law must apply to address division of assets, including business interests, real property, repayment of monies and the like.
Healthcare Access
If not married, same sex couples can ensure they have healthcare access to their partner through appropriate estate documents such as a Healthcare Power of Attorney and Durable Power of Attorney. These documents can be used to ensure you have access and are able to speak to healthcare providers of your partner in emergent or other scenarios.
Parentage and Parental Rights
Children born of a same sex marriage are deemed the children of both parents. This gives both parties the ability to seek custody of the children. However, typically, the biological mother is deemed the primary parent unless proven to be unfit by the other parent.
If a parent obtained a legal custody order of the child prior to marriage or adopted a child, the parents may be deemed to be on equal legal footing in which case the Court may award custody to either parent, not necessarily the biological parent.
Gender Marker and Name Changes
Transgender persons often require assistance with changing their gender marker and name on their birth certificate.
This can be accomplished through court order by filing an appropriate petition in the family court. For a gender marker change, a physician must execute an Affidavit attesting that you have undergone appropriate hormonal therapy to be deemed a male or female and that the change is permanent. A counselor must execute an Affidavit attesting to any counseling undergone as part of the transition process, as well as whether there is any diagnosis, such as gender dysphoria.
The affidavits must be submitted to the court and the Department of Public Health must be named a party to the case because they issue birth certificate amendments. After a short hearing, the relief is typically granted and a court order issued granting the relief.
Our LGBTQ+ Legal Services
Adoption
We assist same sex couples with adoptions. Oftentimes, same sex couples will obtain donor sperm from a cryobank, and one parent may carry to term. Many couples wish to solidify their parental relationship by doing a second parent adoption.
If a name change of your child is requested, part of your requested relief from the court can be to change the name of the child legally and on the child’s birth certificate. It may also involve adding the adoptive parent as a parent on the child’s birth certificate.
Marriage and Divorce for LGBTQ+ Couples
With the legalization of marriage for same sex couples in South Carolina, this means you have access to family court protections just as other heterosexual couples do. This means that should you separate or seek a divorce you will be going through the same process outlined in our divorce section.
Estate Planning and Health Care Directives
If you are in a same sex couple and not married, it is imperative that you execute proper estate documents to ensure your possessions go to your rightful beneficiaries. Because you are not married, the law does not presume that your assets will go to your surviving partner.
Similarly, a Durable Power of Attorney and Healthcare Power of Attorney can provide you the needed protections to pay bills, to have access to all financial records of your partner, and to have access to and to speak to their treating physicians to make informed decisions.
Gender Transition Legal Support
Many times individuals seek to change their gender marker and name after successfully transitioning from one sex to another. The court has the authority to amend a birth certificate if it is shown there was a “mistake” at birth. This requires the filing of a petition in the family court seeking this relief. An affidavit from a treating physician must be obtained certifying the transition and that it is permanent in nature. An affidavit from a therapist is also needed to prove to the court that you have been seeking therapy to address the mental health side of transitioning, as well as any diagnosis, such as gender dysphoria.
The South Carolina Department of Public Health must be made a party to the case because they control the issuance of birth certificates. Assuming they approve, and they usually do, the Court will approve your request for gender marker and legal name change after a brief hearing.
Why Choose an Attorney Who Understands LGBTQ Law?
It is important to choose an attorney who understands and has knowledge of legal issues specific to LGBTQ individuals. Otherwise, you may spend a lot of time and money with no results.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.