This is not a comprehensive list of family law issues, but these
are some of the most common questions we have received at our Legal
Program.
My partner and I broke up, and now I am afraid I will never see
the child we were raising together. The child is my partner’s biological
child. Do I have any rights?
Visitation may be a possibility. If you adopted the child (see
above), you have as much right to visitation and custody as a birth
parent. Assuming you did not adopt, however, you may still be able to
seek visitation
(Minn. Stat. 257C.08 Rights of visitation to unmarried persons) with the child if (a) you lived with that child for at
least two years, and (b) you effectively assumed a parental role with
respect to that child. If these are true, a judge may order visitation
for the non-biological parent upon finding that permitting such
visitation is in the child’s best interest.
I am married, but divorcing. We have kids, and I want custody of them.
Can my sexual orientation be used against me to deny me custody?
In general, no. Minnesota judges are required in custody matters to
act in “the best interests of the child.” State law permits judges to
consider many factors, but forbids judges from considering matters that
do not affect a person’s relationship with the child or their ability to
parent. Sexual orientation or gender identity, by itself, has no particular relevance to a
person’s relationship to their children, or to their ability to parent,
and a judge may commit an abuse of his or her considerable discretion by
basing a decision to deny custody on a parent’s sexual orientation or
gender identity.
My partner has a child from a previous marriage. May I adopt that
child?
Typically, yes. Minnesota law has been interpreted to permit such
adoptions, although the law is not crystal-clear on this point. The
process is often called a “second-parent adoption”, and requires the
consent of all living biological parents of a child. The approval of
such an adoption is also contingent upon a judge finding that the
adoption is in the child’s best interests. Because a judge has a great
deal of discretion in this regard, it is impossible to guarantee that a
particular judge will grant an adoption. While second-parent adoptions
have become relatively common in the Twin Cities metropolitan area,
courts in other areas of Minnesota may see far fewer and may not treat
them in the same routine manner. OutFront Minnesota is
tracking
people’s adoption experiences in counties across Minnesota. Having an attorney is critical to the
success of any adoption.
This information is intended to be general and
educational. It is not intended to be legal advice. Not all options
discussed are always appropriate for every family or situation. Also,
the law is continuously evolving on GLBT issues – certain details in
this document could, in theory, change over time. Always consult with an
attorney when drafting or signing documents affecting your legal rights.
For more information, or for referral to a
GLBT-friendly family law attorney in your area, please contact the Legal
Program at
or at (612) 822-0127, ext. 230.
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In May, 2007, the Minnesota Supreme Court ruled in a case,
called SooHoo v. Johnson, upholding the application of
Minnesota’s third-party visitation law
to the circumstances of a same-sex couple.