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Issues in Same Sex Divorce Part I: Mediation Helps you Divorce Peacefully with Kids

Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.

Same-sex couples have struggled for years to realize their dreams to build stable families and relationships. After the Supreme Court legalized same-sex marriage in 2015, states were required to issue licenses for same-sex marriages. Unfortunately the simplicity of planning a big day didn’t mean an easy ride for same-sex parents. Even though equal marriage made the spouse of the biological parent of a child born in the marriage the default parent, many complications surfaced, as state laws sometimes refused to recognize the rights of the non-biological parents. Despite the fact of marriage equality, many same-sex parents feel compelled to do second parent adoptions to protect their rights. Sadly, divorce can be a particularly disruptive and difficult time for same-sex parents. If there is conflict, parents can suffer anxiety about the future of their parenting relationship with their child after divorce. Luckily, in mediation, conflict resolution is not only possible, but conflict management for a successful parenting relationship is a longterm goal. At Boileau Conflict Solutions, we can help you build conflict resolution skills with your co-parent that will stand future tests. We have experience drafting complex parenting plans, including international parenting plans or parenting plans where a child may have several adults in a parenting role. Our mediation practice is informed by psychoanalysis and we consider the wellbeing and developmental level of the child a key factor to successful negotiations. We believe that if you understand and can clearly identify the needs of your child you will be better able to divide up your parenting responsibilities.

When Same-sex marriage partners divorce with children, there are special considerations. Here’s a look at some of the difficulties same-sex couples face in divorce:

Parental Roles and Rights

In same-sex partnerships, there may be a number of people playing a caring role in a child’s life. The birth parents could be donors, surrogates or friends who might play a minor role in the child’s life. They could also be previous partners. Previous partners or friends might not be birth parents but might have taken on parenting roles at some stage and might feel they have a claim to a parenting role. The list of possibilities can be endless. What matters is that the child is loved and cared for, but unfortunately the complicated legal and emotional landscape of same-sex divorce can make that reality fraught with difficulties. Mediation aims to help partners in a same-sex divorce (and any other adults involved in children’s lives), come to an agreement that honors the child’s best interests and the parents’ roles in the child’s life. Many factors can cause conflict: some non-biological parents’ rights are still challenged in some states, same-sex families can be more complicated and there may be conflict between conservative and non-traditional family members. This is why it’s important to seek divorce mediation before conflict can damage the child’s support system.


At Boileau Conflict Solutions we often work with parents to develop flexible parenting plans for when parents are relocating to another state or internationally. Relocation may be additionally complicated for same-sex parents who are divorcing, when laws about parental rights are less friendly to same-sex couples in different states. Whenever a parent relocates with a child it is important to make sure that the other parent is OK with the plan and that the child travels with the relevant documents (especially in the case of relocating internationally). Parents need to work together to come to a fair parenting arrangement, because unilateral decisions can cause huge conflict (and may be against the law). Costs and time management can also be a big issue with relocation. We use game theory and other financial approaches to help parents use their resources to craft smart and flexible parenting solutions.

Effective Planning and Healthy Child Development

Parenting plans for same-sex couples who are divorcing may need to be drafted with special care, as children can face unique challenges. Children of same-sex divorces may be caught in the crossfires between traditional birth-parents and same-sex co-parents, or may be influenced by interfering in-laws. Children may have multiple caregivers and can be caught up in conflict. There might be disputes about raising the child in a religion or a school system. Children might be exposed to bullying from classmates with a traditional background. Drafting a parenting plan for children in same-sex divorce is facilitated by a third party in mediation who can help couples and other people in the child’s life to resolve disputes in a sensitive and intelligent manner. The timing of divorce can also be a factor in children’s ability to cope with divorce. Research has shown that children are more sensitive to divorce at different ages. At Boileau Conflict Solutions, we use attachment theory and consider the child’s developmental level when working with divorcing parents. With same-sex parents who are divorcing, social and cultural issues can also be a part of this assessment.

It’s a sad truth that navigating divorce is still more difficult for same-sex couples. At Boileau Conflict Solutions, we are caring, well-educated mediators with backgrounds in finance, mathematics, psychoanalysis and the law. We aim to make your divorce transition as efficient and painless as possible using strategies that take into account the whole landscape of divorce: financial, emotional, cultural and legal. We have offices in Boulder, CO, Campbell, CA, Irvine, CA and Beverly Hills, CA. We can also be contacted via telephone, Facetime or Zoom. We are available at urgent notice, 7 days a week. Please get in touch to see how we can help.

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